FEDERAL COURT OF AUSTRALIA

DZC18 v Minister for Immigration and Border Protection [2018] FCA 1859

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for mention on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, a citizen of Germany, was convicted of various sexual offences for which he received a sentence of imprisonment. The applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). The applicant made representations to the respondent (the Minister) seeking revocation of the cancellation decision. On 6 February 2018, the Minister, acting personally, decided not to revoke the cancellation decision. I will refer to the Minister’s decision of 6 February 2018 as the Decision.

2    By originating application for review of a migration decision, the applicant has sought judicial review of the Decision. The grounds in the application are numbered 4, 5, 6 and 7. The applicant does not press grounds 4 and 6. The remaining grounds are:

(a)    ground 5: the Minister placed weight on a finding that was illogical, irrational or legally unreasonable, or engaged in a process of reasoning that was illogical, irrational, legally unreasonable or affected by an undisclosed legal error; and

(b)    ground 7: alternatively, the Minister failed to give reasons for the decision as required by s 501G of the Migration Act, and mandamus should issue to compel the provision of the Minister’s actual reasons for decision.

3    For the reasons that follow, in my view, ground 5 is not made out. In relation to ground 7, as explained below, the parties both proceeded on an assumption that does not appear to be correct. In these circumstances, I will give the applicant the opportunity to consider whether it wishes to make further submissions on this ground.

Key legislative provisions

4    It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

5    That provision refers, relevantly for present purposes, to paragraphs (6)(a), 6(e) and (7)(c) of s 501, which provide as follows:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

 (e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or …

Background facts

6    The following statement of the background facts is based on the statement of reasons signed by the Minister on 6 February 2018 (the Statement of Reasons) and other material before the Court by way of a four-volume “Bundle of Relevant Documents”.

7    The applicant and his de facto partner arrived in Australia in 1994. The applicant was then aged 33 years. He lived in Australia from that time until recently. I was informed that the applicant has returned to Germany (having completed his sentence).

8    The applicant and his partner have two children, both of whom were minors at the time of the Decision. Both children are Australian citizens. The applicant’s partner became an Australian citizen in May 2017.

9    At the time of the Decision, the applicant had lived in Australia for 23 years. The Minister accepted that the applicant had made a solid, positive contribution to the community through his work, charitable contributions and overall involvement and participation in the betterment of his local community.

10    In December 2013, the applicant was convicted in the County Court of Victoria of the following offences, for which the Court of Appeal of the Supreme Court of Victoria re-sentenced him (in May 2014) as follows:

(a)    sexual penetration of a child under 16 years – 30 months’ imprisonment, 2 months cumulative;

(b)    indecent act with child under 16 years – 18 months’ imprisonment; and

(c)    indecent act with child under 16 years (two counts) – 6 months’ imprisonment on each count, 2 months cumulative on each.

11    The total effective sentence was 3 years’ imprisonment, with a non-parole period of 18 months.

12    The applicant stood trial on three occasions, as detailed in [71] of the Statement of Reasons.

13    The circumstances of the applicant’s offending are set out at [75]-[84] of the Statement of Reasons. It is unnecessary for present purposes to set out the circumstances. It is sufficient to note that, as stated by the Minister at [67] of the Statement of Reasons, sexual offences committed against minors are very serious. Further, as noted at [83] of the Statement of Reasons, the Minister considered the sentences the applicant received to be a further indication of the seriousness of the offending.

14    On 25 May 2015, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act (the cancellation decision). There is no issue that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A).

15    The applicant applied, pursuant to s 501CA of the Migration Act, for revocation of the cancellation decision. The applicant’s representative provided submissions on his behalf. The reasons advanced for revocation are summarised at [12] of the Statement of Reasons. These included that:

(a)    revocation would serve the best interests of the applicant’s minor children;

(b)    the applicant was rehabilitated and there was no risk of future offending;

(c)    the high level of personal, charitable and academic contribution the applicant had made to the community;

(d)    the adverse impacts relocation to Germany would have on his partner and children who would relocate with him, including the negative effects on the partner’s career, the disruption and hardship for the partner and the children, and the impact on their health;

(e)    the business interests of Australia, in light of the partner’s work;

(f)    the best interests of the Australian community, taking into account strong ties and contributions to the community.

16    On 6 February 2018, the Minister made the Decision and signed the Statement of Reasons. The Minister was not satisfied that the applicant passed the character test. The Minister then considered whether there was another reason why the cancellation decision should be revoked. This part of the Statement of Reasons was structured under the following headings:

(a)    Best interests of minor children.

(b)    Expectations of the Australian community.

(c)    Strength, nature and duration of ties.

(d)    Impact on Australian interests.

(e)    Extent of impediments if removed.

(f)    Protecting the Australian community.

(g)    Conclusion.

17    In the section on the “Best interests of minor children”, the Minister found that it was in the best interests of the applicant’s children that the Minister revoke the cancellation decision.

18    In the section on the “Expectations of the Australian community”, the Minister noted certain submissions of the applicant’s lawyer. The Minister stated that he took into account the circumstances listed by the lawyer, which included that: the applicant had been assessed by a psychiatrist and psychologist as presenting no risk of re-offending; the applicant and his partner had made significant contributions to the Australian community through their work; and the applicant and his partner had made considerable social, personal and charitable contributions to the community.

19    The Minister stated at [32] of the Statement of Reasons that: the Australian community would expect non-citizens to obey Australian laws while in Australia; and, where a non-citizen has breached that trust, or where there is an unacceptable risk that they will breach that trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it might be appropriate to not revoke the cancellation of the visa of such a person. The Minister stated that the applicant had breached that trust as he had been found guilty in the courts of committing sexual offences against a minor. The Minister stated: “Given the very serious nature of these offences, which can have lasting psychological implications for a victim, I conclude that the Australian community would expect that [the applicant] should not hold a visa.”

20    In the section on the “Strength, nature and duration of ties”, the Minister discussed in some detail the contribution of the applicant and his partner to the Australian community. The Minister noted at [34] that the applicant “has resided in Australia for some 23 years, having arrived [in] 1994 as an adult aged 33 years”. The Minister also referred to the fact that the applicant had resided in Australia for 23 years in [35] of the Statement of Reasons.

21    The Minister acknowledged, at [43], that the applicant had built strong social networks in Australia through his work, his children’s school and community involvement. The Minister stated, at [44], that he had taken into account the letters submitted to the Department of Immigration and Border Protection (the Department) by a large number of the applicant’s friends in the community.

22    The Minister noted, at [49], that the RMIT University Bridge of Hope Innocence Initiative organisation, established to investigate convictions they believe to be wrongful, advised the Department in July 2016 that they had agreed to investigate the applicant’s claim that his conviction was wrongful, and advised on 22 August 2017 that after extensive investigations they believed there to be material that would establish the applicant’s innocence of the offences.

23    The Minister referred, at [51], to the significant contributions the applicant had made to the academic community in Australia.

24    The Minister found, at [54], that the effect of non-revocation for the applicant’s large network of professional close peers, students, and his various close and supportive friends and benefactors of his generosity in Australia, would be “great disappointment” and that those with a close and personal relationship to the applicant “may also suffer emotional hardship” in the event that he was to permanently return to live in Germany.

25    In the section on “Impact on Australian interests”, the Minister found, at [58], that if the applicant’s partner chose to relocate to Germany, this would likely have a negative impact on the Australian community given the contribution she made to the Australian community through her work.

26    In the section on the “Extent of impediments if removed”, the Minister stated, at [64], that, overall, the applicant would “likely experience substantial hardship in relocating to live in Germany”, given various factors as there set out.

27    The next section of the Statement of Reasons, headed “Protecting the Australian community”, included two sub-headings:

(a)    Criminal conduct.

(b)    Risk to the Australian community.

28    In the section headed “Criminal conduct”, the Minister described the applicant’s convictions and the sentences he had received (on appeal) in respect of those convictions. The Minister described the circumstances of the offences, and referred to the seriousness of the offending. The Minister stated, at [84], that although there was no information before him as to any psychological harm to the victim of the applicant’s offending, the Minister considered that this type of offending “has the potential to have significant short and long term adverse psychological impacts on a minor victim and also has the potential to cause physical harm to a minor victim”.

29    In the section dealing with the “Risk to the Australian community”, the Minister stated, at [85], that he had considered whether the applicant posed a risk to the Australian community through re-offending “by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the applicant] has undertaken to reform and address his behaviour”. The Minister stated, at [86], that he had taken into consideration the assessments conducted by Dr Cummins (a consulting, clinical and forensic psychologist) and Dr Walton (a consultant psychiatrist). The Minister noted, at [87], that both Dr Cummins and Dr Walton considered the applicant to present no risk of re-offending.

30    The Minister noted, at [94], that despite the findings of guilt by a jury in the County Court of Victoria in respect of four offences, later left undisturbed by the Court of Appeal, the applicant maintained his innocence.

31    After further discussion of the risk of re-offending, the Minister stated as follows at [98]-[100]:

98.    I also consider that [the applicant’s] ability to refrain from reoffending after serving his term of imprisonment, has not yet been tested in the Australian community in an unsupervised capacity.

99.    Overall, I find that there is a likelihood, albeit low, that [the applicant] will reoffend.

100.    I consider that even the smallest of risk of reoffending to be sufficient risk, given the potential harm that such offending could cause to a vulnerable member of the community. I consider that should [the applicant] reoffend in a similar manner, it could result in physical or psychological harm to a minor member of the Australian community.

(Emphasis added.)

I note that the first sentence of [100], set out above, is relevant to ground 5 of the originating application.

32    The final section of the Statement of Reasons was headed “Conclusion”. In [104], the Minister referred to his finding that the best interests of the applicant’s children would be served by the revocation of the cancellation decision. In [105], the Minister stated that he had considered the length of time that the applicant had made a positive contribution to the Australian community – “23 years” – and the consequences of non-revocation of the cancellation decision for his partner.

33    Then, from [106], the Minister referred to various factors favouring non-revocation and engaged in a process of weighing factors for and against revocation. The Minister stated at [106]-[109]:

106.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by [the applicant], that are of a sexual nature, and involved a vulnerable member of the community, that being a minor.

107.    Further, I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

108.    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of their life, or from a very young age.

109.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration, and any other considerations as described above. These include his lengthy residence, his employment, volunteer, charity and familial bonds to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

(Emphasis added.)

I note that [108] is also relevant to ground 5 of the originating application. It is convenient to observe at this point that one of the difficulties with [108] is that it seems to state, incorrectly, that the applicant had lived most of his life in Australia or had arrived in Australia at a very young age. In fact, as set out above, the applicant arrived in Australia at the age of 33 and then lived in Australia for 23 years.

34    The Minister concluded, at [110], that having given full consideration to all of the matters referred to earlier, he was not satisfied that there was another reason why the cancellation decision should be revoked.

The application for judicial review

35    The applicant has applied to this Court for judicial review of the Decision. He relies on two grounds, which have been set out at [2] above.

Sections 501(3A) and 501CA

36    Sections 501(3A) and 501CA have been discussed in a number of cases. I referred to and discussed some of these cases in Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [42]-[44].

Ground 5

37    By ground 5, the applicant contends that the Minister placed weight on a finding that was illogical, irrational or legally unreasonable, or engaged in a process of reasoning that was illogical, irrational, legally unreasonable or affected by an undisclosed legal error. In the particulars under this ground, the applicant relies on the following matters:

(a)    the Minister purported to apply a risk threshold that “even the smallest of risk of reoffending” was a “sufficient risk” (Statement of Reasons, [100]) with respect to the possibility of the applicant causing any harm in the future to the Australian community;

(b)    this can be understood, practically, as a “zero risk threshold”;

(c)    yet, the Minister also purported to decide the case on the basis that there was a balance to be undertaken in a way that presumes that there would be allowed to the applicant tolerance of some risk of harm to the Australian community (Statement of Reasons, [108]);

(d)    these two paths of reasoning cannot stand together, and reveal that the Minister must have acted illogically, irrationally, or confused the facts or the statutory regime, or made some other legal error.

38    In the applicant’s outline of submissions, it is noted that in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [27], French CJ recognised a species of legal error constituted by unreasonableness from which an undisclosed underlying error may be inferred, referring to Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 (Avon Downs) at 360 per Dixon J. The applicant submits that such an undisclosed legal error should be inferred as having occurred in this case. The applicant refers to a number of difficulties with [100] and [108] of the Statement of Reasons. In relation to [100], the applicant submits that the meaning of the statement that “even the smallest of risk of reoffending [is] sufficient risk” is unclear. In relation to [108], the applicant poses the question, what is the Minister referring to when he says “criminal conduct”? The applicant submits that, read in context, the Minister should be taken to be referring to the risk of harm. Further, the applicant submits that the words “most of their life, or from a very young age” do not make sense in this case, as neither of these things was true. The applicant submits that the opacity in this aspect of the Statement of Reasons justifies an inference that the Minister was confused when determining not to accede to the request for revocation of the cancellation decision, and the confusion related to a crucial, if not the decisive, issue. The applicant submits that the confusion justifies an inference that some legal error affects the Minister’s decision, even if it cannot be identified.

39    In his submissions, the applicant submits that there is a irreconcilable tension between [100] and [108]: on the one hand, the Minister said he was not prepared to tolerate any risk of harm posed by the applicant; yet at the same time the Minister said that he was prepared to tolerate some risk of harm.

40    Before directly addressing the applicant’s ground and submissions, I will make some observations about [100] and [108] of the Statement of Reasons. As set out above, at [100] the Minister stated that he “consider[ed] that even the smallest of risk of reoffending to be sufficient risk”. This raises a question: sufficient for what? In the context in which this statement appears, I would read the Minister as saying that he considered even the smallest risk of re-offending to be sufficient to count against revocation of the cancellation decision. At this stage of the Statement of Reasons (ie, before the “Conclusion”), the Minister was considering a range of matters that were (or could be) relevant to the decision to be made. He was not at this stage deciding whether or not the cancellation decision would be revoked. It was only in the section headed “Conclusion” that the Minister brought the various matters together and undertook a weighing process in order to reach a conclusion. The use of the word “sufficient” in [100] is significant. In my view, the Minister was saying that the smallest risk of re-offending by the applicant was sufficient to count against revocation of the cancellation decision, rather than saying that it was determinative of that outcome.

41    Turning to [108], the Minister referred to “applying a higher tolerance of criminal conduct by [the applicant]”. The applicant submits that this is concerned with the risk of harm or the risk of re-offending. In my view, it is unclear whether the Minister was referring here to the criminal conduct that the applicant had already engaged in, or the risk of the applicant engaging in future criminal conduct, or both. The expression “criminal conduct” is the same as the heading that appears immediately before [67]. That section of the Statement of Reasons was concerned with the applicant’s past offending, perhaps suggesting that this is what the Minister was referring to in [108]. The use of the words “criminal conduct” rather than, for example, “risk of re-offending” also suggests the Minister was referring to past offending. On the other hand, the structure of the sentence and the use of the word “tolerance” may suggest that the analysis was essentially forward-looking and thus concerned with the risk of future criminal conduct.

42    The other difficulty with [108] is that the Minister referred to applying a higher tolerance than he otherwise would “because he [ie, the applicant] has lived in Australia for most of their life, or from a very young age”. Putting to one side the use of the plural “their” to refer to the applicant, the problem is that neither of these statements is correct. The applicant had not lived in Australia for most of his life and he did not arrive in Australia at a very young age. In the outline of submissions on behalf of the Minister it is submitted that the words “lived in Australia for most of their life” should be read in the sense that the applicant had spent a significant part of his adult (and productive) life in this country. Rather than reading the words in this way, I would see this as simply a slip by the Minister, in a context where it is clear from other parts of the Statement of Reasons that he understood that the applicant had arrived in Australia at the age of 33 and had lived in Australia for 23 years (see, eg, [34], [35], [51], [52] and [105]). As for the reference to “or from a very young age”, this would appear to be an alternative basis for applying a higher tolerance, albeit an alternative that was inapplicable in the present case. It is odd to provide this as an alternative basis in circumstances where it was inapplicable to the applicant. Nevertheless, it is clear from the Statement of Reasons as a whole that the Minister correctly understood that the applicant had arrived in Australia at the age of 33 years and not at a very young age (see, eg, [34]).

43    Having made these observations, I turn to deal more directly with the applicant’s ground and submissions.

44    In my view, the Statement of Reasons, in particular [100] and [108] are not affected by legal error as contended by the applicant. Once [100] is read in the way outlined above, there is no necessary inconsistency between [100] and [108]. In [100], the Minister stated, in effect, that he considered even the smallest risk of re-offending to be sufficient to count against revocation. In [108], as part of the weighing process, the Minister stated that where significant harm could be inflicted on the Australian community, even other strong countervailing considerations might be insufficient for the Minister to revoke the cancellation decision, even applying a higher tolerance than the Minister otherwise would. Whether the higher tolerance was for the applicant’s past offending or the risk of future criminal conduct or both, there is no necessary inconsistency between [100] and [108]. In an abstract sense, the Minister was prepared to apply a higher tolerance in favour of the applicant, but in the particular circumstances this was outweighed by the significant harm that could be inflicted on the Australian community if the applicant were to re-offend.

45    It follows that I am not persuaded that [100] and [108] of the Statement of Reasons demonstrate that the Minister engaged in a process of reasoning that was illogical, irrational, legally unreasonable or affected by an undisclosed legal error.

46    For these reasons, I do not consider that the Minister’s Statement of Reasons is affected by legal error as contended by the applicant (including on the basis of Avon Downs at 360).

47    Insofar as the applicant also submits, in [22] of his outline of submissions, that the Minister did not give active intellectual attention to the actual matters the applicant put forward to justify a tolerance of some (rather than no) future risk of harm (relying on an analogy with Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [1], [48] and [68]), I do not accept this contention. The contention is based on the same part of [108] discussed above. Reading the Statement of Reasons as a whole, it is apparent that the Minister correctly understood the applicant’s age when he arrived in Australia and the period of time during which the applicant had resided here.

48    For these reasons, ground 5 is not made out.

Ground 7

49    Ground 7 is an alternative ground. It is that the Minister failed to give reasons for the decision as required by s 501G of the Migration Act. The applicant seeks an order in the nature of mandamus to compel the provision of the Minister’s actual reasons for decision. The ground appears to be based on the same aspects of [108] as discussed above.

50    This ground was not dealt with in the applicant’s written submissions (even though the proceeding was set down for hearing on all grounds). At the hearing, the applicant’s counsel did not make any detailed submissions in relation to this ground. However, this may have been predicated on both parties having adopted an assumption that [108] of the Statement of Reasons did not involve “drafting errors”. It is unclear whether, given the way that I have approached the matter, the applicant would want to make further submissions in relation to ground 7. In the circumstances, I propose to give the applicant an opportunity to consider these reasons and then indicate if he wishes to make further submissions in support of ground 7.

Conclusion

51    For the reasons set out above, I reject ground 5, and I will give the applicant an opportunity to consider these reasons and then indicate if he wishes to make further submissions in support of ground 7. At this stage, I will order that the matter be listed for mention on a date to be fixed.

Associate:

Dated:    27 November 2018