Federal Court of Australia

MKBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1827

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The decision of the second respondent made on 9 December 2019 is set aside.

3.    The matter is remitted to the second respondent for determination according to law.

4.    On or before 4.00 pm on 12 January 2021, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the applicant's costs.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the applicant's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal. The applicant is a citizen of the United Kingdom. He came to Australia in 1996 when he was 13 years of age. From 2005 to 2018 he was convicted of a large number of offences including driving offences, stealing, possession of cannabis and amphetamine, breaches of violence restraining orders and breaches of bail undertakings.

2    On 20 February 2018 the applicant was convicted of one offence of using a carriage service to groom a person under 16 years of age, and six offences of using a carriage service to transmit indecent communications to a person under 16 years of age. The grooming offence involved the applicant using Facebook Messenger to communicate with a 15-year-old girl on numerous occasions between May and July 2016. He used a fake Facebook profile of a 17-year-old male which he had created using a fictitious name and photographs he had obtained from the Internet. The conversations with the child, who told the applicant she was 14, included talk by him about engaging in sexual activities with her. He obtained her mobile telephone number, tried to video call her, and made six attempts for her to meet with him in person. He sent her images of himself but said in the messages that they were images of the fictitious 17-year-old's cousin (the applicant was 34 years old at the time).

3    The indecent communications offences of which the applicant was convicted involved Facebook messages with girls from 13 to 15 years of age, using the same fake profile, which involved sexualised conversations and the applicant sending the children pornographic images and videos, and photographs of himself naked.

4    After those convictions, a delegate of the first respondent (Minister) cancelled the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) because, having a substantial criminal record, he did not pass the character test, and because he had been convicted of sexually based offences involving children. Pursuant to s 501CA of the Act, the applicant made representations seeking revocation of the cancellation, but on 26 August 2019 a delegate of the Minister decided not to revoke the cancellation. The applicant sought review of that decision before the Administrative Appeals Tribunal and on 9 December 2019 the Tribunal affirmed the decision not to revoke the cancellation. The applicant now seeks judicial review of the Tribunal's decision.

5    There are four issues raised by the application. The first is whether the Tribunal failed to consider a mandatory consideration about the effect of non-revocation on the applicant's family, by failing to consider statements from members of the family as to what the applicant's removal from Australia would mean for them. The second issue is whether the Tribunal misconstrued and misapplied s 500(6H) of the Act. The applicant submits that the Tribunal applied that section so as to wrongly preclude the receipt of evidence from him that illicit drugs had been available to him when he was in prison, but he nevertheless abstained. This is said to have resulted in a failure by the Tribunal to consider a mandatory consideration or a denial of procedural fairness. The third issue is whether the Tribunal erred in rejecting expert psychological evidence that it was unlikely that the applicant would have ever met up with the child he had been grooming. This raises the question of whether the Tribunal could not receive that evidence, because it was inconsistent with the elements of the grooming offence of which he was convicted. There is also a question about whether, if that was an error, it was material. The fourth issue is whether the Tribunal erred in accepting the opinion of the sentencing judge that the applicant was at a high risk of reoffending without the Tribunal having the evidence which had informed his Honour's opinion.

6    For the following reasons, the third of those issues should be decided in favour of the applicant, so that the application will be allowed and the Tribunal's decision will be set aside.

The Tribunal's decision

7    Before the Tribunal it was common ground that the applicant did not pass the character test. So the issue for the Tribunal was whether, under s 501CA(4)(b)(ii), there was 'another reason why the original decision should be revoked'. Section 499(2A) of the Act required the Tribunal to comply with Ministerial Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) in considering that question. Paragraph 13(2)(a) of the Direction required the Tribunal to treat the protection of the Australian community from criminal or other serious conduct as a primary consideration. Paragraph 13.1(2)(a) required the Tribunal, in connection with that consideration, to consider the nature and seriousness of the applicant's conduct to date. Paragraph 13.1.1(1)(a) required the Tribunal to view sexual crimes very seriously, and it did view the applicant's sexual offences as very serious.

8    Paragraph 13.1.1(1)(d) required the Tribunal also to have regard to the sentences imposed. These were 22 months for the grooming offence, and lesser custodial sentences served concurrently for the indecent communications offences. The Tribunal found that these sentences reflected the serious nature of the applicant's sexual offending.

9    After considering other matters, including the non-sexual offences of which the applicant had been convicted, and what the Tribunal found to be an increase in the seriousness of his offending, the Tribunal found that the applicant's offending, particularly the sexual offences, was very serious and weighed strongly against the revocation of the cancellation of the visa.

10    Paragraph 13.1(2) of Direction No 79 also required the Tribunal in connection with the protection of the Australian community to give consideration to the risk to the community should the applicant commit further offences or engage in other serious conduct. Paragraph 13.1.2(1) required the Tribunal, in considering that risk, to:

have regard to, cumulatively:

a.    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b.    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

11    In that regard the Tribunal referred to the opinion of Dr James McCue, a clinical and forensic psychologist whom the applicant had called as a witness in the hearing before the Tribunal. In relation to the grooming offence, the Tribunal described Dr McCue's opinion as being that the applicant would not have followed through with meeting the child due to the applicant's issues with self-esteem and lack of confidence in relationships (para 81). But the Tribunal then said that he 'later qualified his opinion', in a passage from his evidence in which he said he did not know what would have happened if the applicant had received a different response from the child.

12    As will be seen, this is not a complete description of Dr McCue's evidence on this point. In any event, it seems that the Tribunal did not accept that evidence. It considered that it could not, because to do so would have been to 'look behind' elements of the applicant's conviction for the grooming offence in a court of law. It will be necessary to return to these parts of the Tribunal's reasons in more detail below as they are the subject of ground of review 3.

13    The Tribunal then went on to make findings about what similar reoffending by the applicant would involve and the harm to child victims that could result. It found (at para 83) that although the emotional and psychological harms that child victims and their parents or guardians are likely to experience from non-contact offending were less than those likely to result from a contact sexual offence, they were nevertheless serious. The Tribunal found (at para 84) 'that the nature of harm that could result if the Applicant is to commit similar child sexual offences in the future is potentially very serious'.

14    The Tribunal then turned to consider the likelihood of the applicant engaging in further criminal or other serious conduct, including the risk of the applicant reoffending, as paragraph 13.1.2(1)(b) of Direction No 79 required. It referred to his lengthy criminal history. At para 88 it noted that the sentencing judge for the child sexual offences said that the applicant was 'at high risk of re-offending' and also noted that this was based on a pre-sentence report that was not before the Tribunal. The Tribunal said that the sentencing judge's comments 'that the Applicant is at high risk of re-offending are, in the Tribunal's opinion, a cause for concern with respect to the likelihood of the Applicant re-offending, especially as they were made less than two years ago'. This part of the Tribunal's reasons is the subject of ground 4.

15    The Tribunal then considered a number of other matters that were relevant to the risk of reoffending, including participation in rehabilitation programs, counselling and workshops. The Tribunal addressed the fact that the applicant had committed the child sexual offences during a period of daily heavy methamphetamine use. He had engaged with Holyoake for counselling related to his illicit drug use and undertook other programs and courses. The Tribunal found that it was to the applicant's credit that he had engaged in these voluntary courses and counselling and that they may contribute positively to his rehabilitation. But it noted that they did not culminate in any formal assessment of treatment gains made, so it was difficult to establish what gains were made and their relevance to the likelihood of the applicant reoffending.

16    The Tribunal was concerned about the number of treatment needs that Dr McCue had identified. The Tribunal considered that, although the applicant appeared to have strong support from 'pro-social family members including his parents and siblings' (para 102), which it described as 'a very close knit family' (para 110), until the treatment needs were addressed there was a likelihood of the applicant reoffending (paras 102, 104).

17    The Tribunal reviewed the applicant's plans if he were to be released into the community, including plans to complete rehabilitation programs, to prepare a mental health plan, and to obtain counselling. The applicant 'stated that he would move in with his parents, regain his driver's licence, start working with his parents in their business, and complete online training courses so that he could obtain work in the mining industry' (para 106). The Tribunal considered that these and other plans were commendable, and formed the impression that the applicant was sincere about them, but it also noted that they were aspirational.

18    Other matters noted by the Tribunal which were likely to be protective against reoffending were the applicant's strong desire to be part of his son's life, and the restrictions placed on him as a reportable sexual offender. The Tribunal agreed that the applicant's supervision in the community, together with his fear of having his visa cancelled in the future, would be deterrent factors which may reduce the likelihood of reoffending.

19    At para 116 the Tribunal found that although the risk of offending was now lower than had been found by the sentencing judge, there remained a likelihood of the applicant committing similar child sexual offences if he were to be released back into the community.

20    The Tribunal recorded submissions made on the applicant's behalf that while his offences were serious, they did not involve physical contact, and so were not so serious that any risk of reoffending made it unacceptable for the applicant to be in the community. The Tribunal then said (at paras 118-119):

However, given the nature of harm articulated above, the Tribunal is of the opinion that the Grooming Offence in particular, which involves online predatory behaviour towards a real child victim (and the intention of making it easier to procure the recipient to engage in sexual activity with the sender) does fall into this most serious category where the potential harm caused by reoffending may be so serious that any risk of it being repeated is unacceptable. So too, but to a lesser extent to the Grooming Offence, are the Indecent Communications Offences which were committed against real child victims. Accordingly, the Tribunal finds that the principle set out in paragraph 6.3(4) of Direction No 79 applies:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant reoffending, should he be given a further chance to be released back into the Australian community. With regard to paragraph 6.3(4) of Direction No 79, the Tribunal finds that the circumstances of the Applicant's Grooming Offence and the serious nature of the harm that can result to victims of this type of offending, as well as the Indecent Communications Offences, mean that even a low or very low likelihood of reoffending in the future is unacceptable. On balance, the Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant's Visa.

21    After returning to the subject of the applicant's driving and traffic offences, the Tribunal concluded (at para 121):

However, putting these driving and traffic offences aside, the Tribunal emphasises that the Applicant's seven child sexual offences alone, are themselves material enough to warrant this primary consideration weighing strongly against the revocation of the cancellation of the Applicant's Visa.

22    The Tribunal then considered the second matter which is a primary consideration by reason of Direction No 79, the best interests of minor children in Australia. It concluded that they weighed moderately in favour of revocation of the cancellation of the visa. There is no need to summarise that part of its reasons, save to note that the Tribunal did consider the best interests of the applicant's nephews, which is relevant to ground 1.

23    The Tribunal then turned to the third primary consideration, the expectations of the Australian community. After considering relevant authorities on that consideration, the Tribunal found (at para 181) that the grooming and indecent communications offences were serious offences committed against child victims and the Australian community would reasonably expect that he should not hold a visa. The Tribunal found that the expectations of the Australian community weighed strongly against the revocation of the cancellation of the visa.

24    There are other considerations which para 14(1) of Direction No 79 required the Tribunal to take into account where relevant. It is only necessary to describe the Tribunal's reasons in relation to one of these, the strength, nature and duration of ties to Australia (para 14.2(1)), and in particular para 14.2(1)(b):

The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

25    Under this heading, the Tribunal found that the applicant's immediate family in Australia comprised his parents, three brothers and a sister. The Tribunal found that they were a very close family and accepted that his family members were very supportive of him and anxious for him to be released into the Australian community. At para 193 it said:

The Tribunal appreciates that the Applicant's family members are very supportive of him, and are anxious for him to be released into the Australian community to be a part of the family again. There are numerous letters of support from his immediate family members before the Tribunal … indicating his close ties to the Australian community. The Applicant's mother, father, sister, and brother gave evidence at the hearing that they would be extremely distressed if the Applicant were to be removed to the United Kingdom. The Tribunal acknowledges that if the Applicant were to be removed from Australia and from his large close-knit family, it would cause distress to both the Applicant and his family members. The Tribunal notes that the Applicant's son, nephews and niece would lose their immediate connection with the Applicant. According to the evidence of the Applicant's mother and sister in particular, the Applicant is a loving and engaged uncle, and a father figure to his sister's three children. There would be the possibility of the Applicant maintaining contact with his son and other family members via electronic means such as Skype, the Internet or by telephone. However the Tribunal acknowledges that this is a poor substitute for in-person involvement, particularly in his son's life. The Tribunal finds that these family members are likely to suffer emotional detriment if he is removed from Australia.

26    In its conclusion on the strength, nature and duration of the applicant's ties to Australia, the Tribunal found (at para 196) that he had:

significant and close ties to Australia in terms of the length of time he has resided in Australia and due to his immediate family members including his parents, siblings, young son, niece and nephews residing in Australia. The Tribunal finds that the Applicant's ties to Australia are strong, and weigh strongly in favour of the revocation of the cancellation decision.

27    In the final section of its reasons weighing all the relevant considerations, the Tribunal summarised its findings in relation to the first primary consideration as being that the nature and seriousness of the applicant's conduct weighed strongly in favour of the non-revocation of the decision to cancel his visa, and the risk to the Australian community should the applicant commit further offences also weighed strongly in favour of the non-revocation. Its ultimate conclusion was that the primary considerations of protection of the Australian community and the expectations of the Australian community outweighed the primary consideration of the best interests of the minor children, and the other considerations which weighed in favour of the revocation of the cancellation decision. It therefore affirmed the delegate's decision not to revoke the cancellation of the applicant's visa.

Ground 3 - whether Dr McCue's evidence could be received

28    I will commence my consideration of the grounds of review with ground 3, which is the ground with the most merit.

29    The applicant claims that the Tribunal erred in rejecting Dr McCue's evidence that it was unlikely that the applicant would have actually procured a child to engage in sexual activity, because of his insecurities and personality traits. The error is said to have arisen because the Tribunal determined that it was unable to receive that evidence because it would impugn an element of the offence of which the applicant was convicted, namely the element of intention. The applicant says that this was wrong because Dr McCue's evidence did not necessarily impugn that element. He submits that a fixed intention to procure sex at the time of the offence is not an element of the grooming offence. The element of intention specified in s 474.27(1) of the Criminal Code 1995 (Cth) is that there be an 'intention of making it easier to procure the recipient [who is under the age of 16] to engage in sexual activity with the sender'. That is not the same thing.

Why did the Tribunal decline to receive Dr McCue's evidence?

30    The Tribunal's description of Dr McCue's evidence on the relevant point is summarised at [11] above. The error is said to be found in para 82 of the Tribunal's reasons, in which, after giving that description, it said:

However, the Tribunal notes that the elements of the Grooming Offence (which the Tribunal cannot look behind - see, for example, HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202) as stated in s 474.27(1) of the Criminal Code 1995 (Cth) includes the element of 'intention of making it easier to procure the recipient to engage in sexual activity with the sender'. The fact that the Applicant was convicted of this offence indicates the sentencing court's satisfaction beyond a reasonable doubt that the Applicant did have an intention of procuring the child victim to engage in sexual activity with him. The Tribunal is bound to accept the factual findings of the court. With regards to the Grooming Offence, the Tribunal therefore adopts the position that similar re-offending by the Applicant would also involve the Applicant intending to, and potentially succeeding in, procuring a future child victim to engaging [sic] in sexual activity with him. If the Applicant were to commit a Grooming Offence in the future and was able to achieve this intention, it could result in harm to victims of a significant physical and/or psychological nature.

31    Implicitly, then, the Tribunal did not receive Dr McCue's evidence that the applicant would not have followed through with meeting the child. This seems to have followed from the Tribunal's understanding that cases such as HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 meant that it could not 'look behind' the elements of the offences of which the applicant had been convicted.

32    The Tribunal was bound to follow the decision of the majority in HZCP (the applicant in this court abandoned a ground of review relying on the proposition that the decision was wrong). The ratio decidendi of HZCP concerns matters where the conviction of the non-citizen of an offence, or a sentence imposed on the non-citizen, is the foundation for the decision-maker's jurisdiction. The view of the majority was that in those matters, on the proper construction of the Act it would be an error for the Tribunal to rely on evidence that is contrary to the essential conviction or sentencing facts: see HZCP at [68] (McKerracher J), [179], [181]-[182] (Colvin J).

33    Although the Tribunal here speaks of 'factual findings of the court', the conviction resulted from a plea of guilty, so there were no findings of fact which led to it (and of course there would not have been any factual findings if the conviction had resulted from trial by jury). There was a statement of material facts before the judge which counsel appearing for the applicant at the sentencing had accepted, but the statement does not say anything about the intent which the applicant had in committing the grooming offence. And the Tribunal does not appear to have had in mind any particular findings that the judge made in the course of sentencing.

34    In view of that, and in view of the Tribunal's reliance on the element of the offence pertaining to intention, I consider that the Tribunal did not proceed on the basis that any specific finding of fact by the sentencing judge required it to reject Dr McCue's evidence. If it had proceeded on that basis, that may not have reflected any misunderstanding of the content of the element of intention for the grooming offence, being the error alleged in the ground of review. It may have just been acceptance by the Tribunal of a finding of fact which a court made beyond reasonable doubt.

35    But here, instead, I accept the understanding of the Tribunal's reasons advanced on behalf of the applicant: the Tribunal considered that it could not receive Dr McCue's opinion as to whether the appellant would have followed through with meeting the child, because that would have been inconsistent with an element of the grooming offence of which the applicant was convicted.

The intention necessarily implied by the applicant's conviction for grooming

36    Whether that was an error on the part of the Tribunal depends on a correct understanding both of the element of intention which must be taken to have been established when a person has been convicted of an offence against s 474.27 of the Criminal Code, and of Dr McCue's evidence. At para 82 the Tribunal correctly quoted the element of intention as contained in s 474.27(1)(c), namely that the offender transmits a communication to the recipient 'with the intention of making it easier to procure the recipient to engage in sexual activity with the sender'. But the Tribunal also said that the fact that the applicant was convicted indicated the sentencing court's satisfaction that he 'did have an intention of procuring the child victim to engage in sexual activity with him'. The applicant relies on Director of Public Prosecutions (Cth) v FM [2013] VSCA 129; (2013) 45 VR 64 (DPP v FM) to submit that the Tribunal thereby misconstrued the element of intention. He submits that the grooming offence can be committed with no fixed intent to actually engage in sexual activity; all that is required is 'intending as a real possibility to engage in sexual activity'. The Minister relies on DPP v FM to submit that intent to procure a minor for sexual activity is an element of the grooming offence. It is therefore necessary to examine DPP v FM.

37    In that case the accused had been charged with offences under s 474.26 ('procuring'), 474.27 ('grooming') and s 474.27A ('indecent communications'). These charges were laid in the alternative and all concerned the same alleged conduct. This reflects the fact that, as indicated by the respective maximum sentences, they are in descending order of seriousness. The trial judge gave a preliminary ruling that he would direct the jury that if the Crown could not exclude as a reasonable possibility that the accused had messaged the 'child victim' (actually a police officer impersonating a child) in order to achieve gratification purely by way of fantasy, with no intention to act on anything that was said and no intention to encourage the child to engage in sexual activity, then neither procuring not grooming would be made out: see DPP v FM at [22], [27]. The Crown appealed from that ruling.

38    The Court of Appeal of Victoria (Ashley, Weinberg and Coghlan JJA) held that if that was indeed the effect of the trial judge's ruling, it was correct (at [58]). But their Honours considered that it was arguable that the judge had gone further and said that in order for the accused to be convicted of procuring or of grooming, it was necessary for the Crown to prove that he had the specific and fixed intent of engaging in sexual activity with the (fictional) child (at [31]). That would not have been correct (at [67]).

39    In order to reach those conclusions it was not necessary for the Court of Appeal to describe the minimum level of intent necessary in order to establish the offence of grooming, which is the key question here. All their Honours needed to decide was that 'pure fantasy' in the sense described would not be enough for either procuring or grooming, and that it was not necessary to prove a specific and fixed intent to engage in sexual activity in order to make out either of those offences. They did not need to say where, between those two boundaries, the intent would need to fall, at a minimum, in order to establish grooming.

40    Nevertheless, their Honours' joint reasons do provide some guidance on that question. In the course of considering whether to grant leave to appeal from the trial judge's interlocutory ruling, their Honours said (at [50]) that:

… if the trial proceeds under the current ruling, and the accused is convicted of 'procuring' or 'grooming', he will not be in a position to complain. The jury will have found an intent on his part to 'encourage' or to 'make it easier' for 'Annie' to engage in sexual activity with him. Whichever interpretation of the ruling is reflected in his Honour's charge, the jury will have rejected the accused's 'fantasising' defence, and concluded that at the time of communicating, as a minimum, he contemplated the possibility of having a live sexual encounter with her.

This indicates that for the Crown to establish grooming, it would need to establish, at least, that the accused intended to make it easier for the 'child' to engage in sexual activity with him, that being something he contemplated as a possibility.

41    At [58] the Court of Appeal stated the essence of their reason for dismissing the appeal as follows:

In our opinion, if a jury is either positively persuaded that an accused was 'purely fantasising' when communicating with a recipient, or if the Crown cannot exclude the reasonable possibility that the accused was so fantasising, it will be fatal to a charge of 'procuring' or 'grooming'. By 'purely fantasising' we mean communicating whilst having no intention of engaging in sexual activity with the recipient. An instance would be where the sender's intent in communicating was solely to gain sexual satisfaction from the fact of communicating. We cannot see how the Crown could discharge its obligation to prove an intent to encourage the recipient to engage in sexual activity if it cannot be shown that there was any intent, on the part of the accused, to engage in such activity. Why would the legislature deem it appropriate to criminalise, in a wholly artificial way, conduct which lacks the moral culpability inherent in the very notion of 'procuring' or 'grooming'?

42    At [60]-[61] their Honours said:

'Procuring' requires an intent to procure. Relevantly, that includes an intent to 'encourage, entice or recruit'. It is difficult to see how an accused, who has not the slightest wish to have the recipient of his communications engage in sexual activity with him, can be said to have intended to 'encourage, entice or recruit' her to do any such thing.

The same may be said of 'grooming', where the term 'procure' is an element of the offence.

43    This latter observation simply follows from the fact that the intention which s 474.27(1)(c) requires for grooming in is an 'intention of making it easier to procure'. It does not necessarily indicate that a 'fixed intent' to bring about sexual activity is necessary. That is confirmed at [67]:

There is no reason, in principle, why an accused should not be convicted of 'procuring' or 'grooming' if, at time of communicating, the accused intends, as a real possibility, engaging in sexual activity with the person to whom he is communicating. He need not, in our view, have formed a 'fixed intent' to pursue that course. To the extent that the ruling may have suggested a need for the Crown to establish such an intent, we disagree. 'Pure fantasising', however, is in an altogether different category, and cannot be regarded as a state of mind that allows for a finding of the requisite intent.

44    So, 'pure fantasising' is not enough to establish the grooming offence. But conviction of that offence does not necessarily imply a specific or fixed intent to engage in sexual activity with the child. The conviction may be on the basis that the accused intended it to occur as a real possibility. What the Court of Appeal said in the course of considering leave to appeal indicates that, at a minimum, a person convicted of the offence must be taken to have contemplated the possibility of having a sexual encounter with the child.

45    In my respectful view, that minimum threshold is consistent with the statutory language. The element is 'the intention of making it easier to procure the recipient to engage in sexual activity with the sender'. If the accused has not contemplated sexual activity with the child as a possibility, it is hard to see how he could be said to have any intention of making it easier to procure that outcome. The outcome is simply not an end he has in mind. On the other hand, it is consistent with the presence of that element of intention if the accused has contemplated that possibility. Because then, if he has done things which, for example, make it more likely that the victim will agree to a physical encounter, it can be said that was the end that he had in mind, even if only as a possibility.

Whether Dr McCue's evidence was inconsistent with the applicant's conviction for grooming

46    On that analysis, Dr McCue's evidence was not inconsistent with the minimum level of intention which the applicant must be taken to have had in the course of committing the grooming offence, by reason of his being convicted of it. It is preferable to set out the relevant part of the doctor's evidence from the transcript of the Tribunal hearing, rather than the Tribunal's summary of it. The questions he was asked by counsel for the applicant, and his answers, were as follows:

Is there a link between offenders who commit offences of this nature and offenders who commit offences of a contact nature? Obviously talking about child sex offences? - So ordinarily non-contact offences don't necessarily predict contact offending behaviour. I would be more confident to offer that opinion had MKBL been found with child exploitation material. Where I think it's difficult for me to be more definitive is the fact that he actually has engaged in a type of contact with his victims, with real life victims, it has just been online. I note that in his communications he had certainly suggested meeting the victims, and I note his explanation that he denied that he was going to act on that. I could argue that potentially he doesn't really have the confidence sexually to act on that because he would have to follow through with what he had suggested in the texts, but equally - I don't have the crystal ball and I don't know what would have happened if he had received a different response. So the difficulty with - the difficulty with explaining the difference between an online sex offender or a non-contact sex offender and a contact sex offender is, in MKBL's case, there has been some contact, it has just been online.

Well, I completely understand that you don't have a crystal ball. Given what you know about MKBL's personality, do you think it would be likely, if one of the responses he received were different, that he would have acted on that and met that child? - I - my view from what I know of him in the assessment is I think it would have been unlikely because of the lack of confidence because, at the time, from what he described, this behaviour was occurring when he was in - on his parent's property, he was using meth, he had - was drinking alcohol at the same time, it was very much - he was at home just texting people indiscriminately. It didn't really seem to be that he had then planned how and where he would facilitate a physical contact, and certainly he didn't describe that plan.

47    This is not evidence that the applicant was engaged in 'pure fantasy' in the sense discussed in DPP v FM. Nor is it contrary to the existence of the minimum level of intention necessarily implied by the applicant's conviction on the grooming offence, that he had contemplated the possibility of engaging in sexual activity with the child.

48    There are two aspects to that conclusion. The first is that, to the extent that Dr McCue did speak of the applicant's state of mind at the time he sent the messages, his evidence was consistent with the necessary intention. The doctor's opinion stated at the end of the passage just quoted was that the applicant had not planned how and where he would facilitate physical contact. That may mean he lacked a fixed and specific intent, but it is consistent with contemplating contact with the child as a real possibility. It would have been possible for the Tribunal to accept Dr McCue's evidence while at the same time proceeding on the basis that at the time of the offence the applicant had the intention of making it easier to procure the child to engage in sexual activity with him.

49    The second aspect is that the necessary intention must be taken to have been present at the time of the commission of the offence, that is, at the time of using a carriage service to transmit a communication to another person. It is not an element of the offence that the offender actually engaged in sexual activity with the victim, or that he maintained any intention to do so after the time of using the carriage service. Dr McCue's view that it was unlikely that the applicant 'would have acted on that and met that child' is consistent with him having the requisite intention at the time of the offence. Even if at the time he sent the messages the applicant had in mind the possibility of meeting up with the child, he could have later decided not to go through with it. Dr McCue's evidence suggests that this is a likely scenario.

50    With respect to the Tribunal, I am satisfied that it fell into error by refusing to consider Dr McCue's evidence about the applicant's intention at the time of the grooming offence and the likelihood that he would have followed through to achieve contact with the child. The Tribunal misunderstood the nature of the intention required to be established to prove an offence under s 474.27(1) of the Criminal Code, and gave an incomplete account of Dr McCue's evidence on the points, and so wrongly considered that the applicant's conviction was necessarily inconsistent with that evidence. While the Tribunal only summarised and quoted from part of the relevant evidence, I am satisfied that it refused to receive all of the evidence of the doctor that is quoted at [46] above.

51    The Minister submits that the Tribunal did not reject all of Dr McCue's evidence and did accept, for example, his evidence about the harm that can be experienced by victims of 'non-contact' sexual offending such as the applicant's offences. It also accepted his evidence of the risk of the applicant reoffending. Those submissions are correct, but they do not go to the point raised by ground 3. That point does not concern the harm that can be experienced when there is no contact. Nor does it concern the risk, in the sense of likelihood, that the applicant would commit further grooming or indecent communication offences if he were to be released into the community. It concerned the likelihood that the applicant would make contact with the victims of such offences, which would then be likely to have led to greater harm than was in fact experienced, or would be experienced if the applicant reoffended in a way that did not involve contact.

52    As the Minister submitted, intention to procure the child victim to engage in sexual activity is an element of the grooming offence. So taken in isolation, there is no error in the Tribunal's statement at para 82 that the sentencing court was satisfied that the applicant did have an intention of procuring a child victim to engage in sexual activity. But DPP v FM confirms that that this could have been an intention of a provisional kind. It need not be the definite intention which, in my view, the Tribunal had in mind when it went on to adopt the position that similar reoffending by the application would involve him 'intending to, and potentially succeeding in, procuring a future child victim to engaging [sic] in sexual activity with him', leading to significant physical or psychological harm. The Tribunal therefore fell into error.

Jurisdictional error and materiality

53    That error was a jurisdictional error if it was material. It was an error which arose because the Tribunal either did not proceed by reference to correct legal principles or did not apply them correctly. The Tribunal therefore breached a condition of the statutory conferral of decision-making authority which is ordinarily implied: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]. There is nothing to indicate that the condition should not be implied into s 501CA(4) of the Act, that being the statutory authority to decide which applied to the Tribunal here. It was an error about the scope of the material which the Tribunal could take into account, in view of a matter that founded its jurisdiction to decide whether to revoke the cancellation of the visa, namely the conviction and sentence for the grooming offence. The legislature cannot have intended to authorise the Tribunal to make an error of that kind.

54    However the statute should also be interpreted as incorporating a threshold of materiality in the event of non-compliance: Hossain at [29]. The Minister submits that the threshold is not met here. Materiality being in issue, it is a question of fact in respect of which the applicant bears the onus of proof: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [46] (Bell, Gageler and Keane JJ). As with any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application: SZMTA at [46].

55    The question is whether there is a realistic possibility that the Tribunal's decision could have been different if the relevant error had not been made: see SZMTA at [48]. It is not what the decision would have been if the omitted matter had been taken into account. Once a realistic possibility that the decision could have been different is identified, there is no need to make any further assessment of the likelihood of the omitted consideration or material affecting the decision: see Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [33] (Yates, Murphy and Moshinsky JJ).

56    The court must not substitute its own view of the matter, absent the error it has identified, for the view of the Tribunal. At [48] the plurality in SZMTA warned against merits review in the following terms:

The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.

The question of fact that needs to be answered is whether the Tribunal that made the decision could realistically have made a different decision if it had not made the relevant error.

57    I have described above the aspects of the Tribunal's decision that are relevant to this question. In summary they are (references to paragraphs above):

(1)    The Tribunal found that the sentence of 22 months above reflected the serious nature of the applicant's sexual offending [8]. It found that his offending, particularly the convictions for seven child sexual offences, was very serious and strongly weighed against the revocation of the cancellation of the visa [9].

(2)    The Tribunal found that the emotional and psychological harms resulting from 'non-contact' sexual offending were less than those likely to result from a 'contact offence', but they were still serious [13].

(3)    After having regard to a number of matters, the Tribunal found that the likelihood of the applicant reoffending was lower than the 'high' risk that the applicant posed at the time of his conviction, as found by the sentencing judge [19].

(4)    However, the Tribunal rejected a submission that the applicant's sexual offending, while serious, was not so serious as to mean that any risk of reoffending made it unacceptable for the applicant to be in the community [20]. It found that the grooming offence in particular fell into the most serious category where the potential harm caused by the risk of reoffending may be so serious that any risk of it being repeated is unacceptable. The Tribunal found the indecent communication offences also to be so serious that any risk of them being repeated was unacceptable, although that was to a lesser extent than the grooming offence.

(5)    The Tribunal expressly applied the principle in para 6.3(4) of Direction No 79 that in some circumstances, criminal offending can be so serious that any risk of repetition is unacceptable, so that even strong countervailing considerations may not be sufficient to justify not cancelling or refusing the visa [20].

(6)    The Tribunal therefore found that the consideration of the risk to the Australian community should the applicant commit further offences weighed strongly against the revocation of the cancellation of the applicant's visa [20].

(7)    The Tribunal emphasised that the applicant's seven child sexual offences alone, including the indecent communication offences, were themselves material enough to warrant the primary consideration of the protection of the Australian community weighing strongly against the revocation of the cancellation of the applicant's visa [21].

(8)    The Tribunal returned to the 'unacceptable risk of harm to minor children if he were to reoffend' when it came to consider the primary consideration of the expectations of the Australian community [22].

(9)    The Tribunal considered that it was bound to proceed on the basis that if the applicant reoffended in a similar way, that would involve him intending to, and potentially succeeding in, procuring a future child victim to engage in sexual activity [30].

58    These findings demonstrate an emphatic view on the part of the Tribunal as to the seriousness of the child sexual offences and the unacceptability of the risk of their recurrence. But the question is not what would have happened; it is what could have happened. The task of the court involves a significant element of reconstruction: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at [70]. The court must ask (ibid): what if the Tribunal had not committed the error? But in a case like the present that does not mean that the error can be surgically excised from the Tribunal's reasons, leaving the framework surrounding it intact.

59    I consider that the Tribunal's findings here about the absolute unacceptability of a low risk of reoffending were influenced to a substantial degree by its refusal to accept Dr McCue's evidence about the unlikelihood that the applicant would have met with the child, and by its view that HZCP required it to find that the applicant had a definite intention to have sexual contact with the child. If the Tribunal had not considered itself bound to disregard Dr McCue's view, it might have considered his evidence more closely. The qualification in the evidence which the Tribunal sought to emphasise (see [11] above) does not emerge strongly when the evidence is considered as a whole (see [46] above). If the Tribunal had considered the evidence of Dr McCue more closely, it may have accepted that the risk that the applicant would ever engage in physical contact with the child victims was lower. Taken together with the lower likelihood of reoffending which the Tribunal found, this could have led the Tribunal away from its conclusion that the risk of reoffending was categorically unacceptable. It is true that the conclusion was also expressed to be based on the indecent communication offences (where intention was not an element). It is also true that at certain points in its reasons the Tribunal stated the element of intention in the grooming offence correctly. Nevertheless I am satisfied that its approach was substantially influenced by its view that if the grooming offence were to be repeated, there was a risk that this would lead to physical contact with a child victim. Accepting potentially significant evidence to the contrary could have led to a different outcome.

60    I do not consider that hypothesis to be a likely one. But, once again, that is not the test. It was a realistic possibility. It may have put a different complexion on one of the primary considerations, the protection of the Australian community. It concerned expert evidence. It was evidence going to a key aspect of that consideration, namely the nature and extent of harm to the community that may occur if the applicant were to reoffend. Putting it in terms that were also used by the plurality in SZMTA (at [48]), Dr McCue's evidence on the relevant point could not be said to be 'of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result'.

61    The Minister's submissions as to materiality depended on two propositions: first, that Dr McCue's evidence on the relevant point was equivocal, and second, that in any event the Tribunal accepted his evidence as to the harm that could result from reoffending. As to the first of these, as I have explained, when the evidence Dr McCue gave is considered as a whole it is not as equivocal as the Tribunal made it out to be. As to the second, I have already explained that the evidence that the Tribunal did accept did not go to the point which is now in issue (see [51] above).

62    I therefore consider that the error was material, and so a jurisdictional error meaning that the Tribunal's decision lacked legal force and effect under the Act. I uphold ground 3.

Other grounds

63    Given my conclusion on ground 3, I can deal with the other grounds more briefly.

Ground 1 - consideration of the effect of non-revocation on the applicant's family

64    By this ground, the applicant alleges that the Tribunal failed to consider a mandatory consideration, namely the effect of non-revocation on his immediate family in Australia. I have described the Tribunal's reasoning on this point at [24]-[26] above. The Tribunal was required by Direction No 79 to have regard to that consideration, and it did. But its reasons focus on the emotional distress which removing the applicant from Australia would cause to his family. The applicant complains that the Tribunal failed to consider statements from the applicant's stepfather and mother that the applicant's removal would have a practical impact on them, as well as a statement from his sister that he was a 'father figure' to her three children. The applicant submits that these omissions demonstrate a lack of intellectual engagement with the consideration on the part of the Tribunal.

65    I do not accept that. The statement of the applicant's mother on which he relies referred to a pre-cancerous condition with which she was diagnosed, which was removed, but did not say what followed from that. That statement, and a statement from his stepfather, also referred to the stepfather not being able to continue with heavy work in the family business and (the stepfather said) the possibility that if the applicant were released into the community he could 'help with the business until he is ready to get back into the mining industry'. In oral evidence this was said to be because of a back problem the stepfather had. But as that statement itself acknowledged, such help as the applicant could provide in the business would only be until he found work in the mining industry. And there was no real suggestion that the father could not employ someone else to do the work, nor any suggestion that the applicant would work without pay. I do not consider that this material was sufficiently cogent or important to require separate comment and consideration. I infer that the Tribunal reached the same view, so that its omission to mention it does not betray a lack of intellectual engagement with the mandatory consideration.

66    As for the applicant's sister's statement, that was to the effect that he was like a father figure to her children, had helped her a lot with them after the children's father had left them, and was a 'significant male in their lives' whom they were close to. The Tribunal did give real consideration to the relationship between the applicant and his nephews, under the heading of the primary consideration of the interests of relevant minor children (paras 146-156). But the applicant submits that this is not the same thing as considering the effect of non-revocation on them, and it also does not touch on the effect of his removal on his sister.

67    As to the first of these submissions, the applicant's point was that para 13.2(1) of Direction No 79 required the Tribunal to make a 'binary' determination about whether revocation was in the best interests of the nephews, while para 14.2(1)(b) required a 'qualitative' consideration of the effect of non-revocation on the immediate family. But be that as it may, the practical reality is that making that binary determination will inevitably require qualitative evaluation of the effect of non-revocation on the children, and the Tribunal performed that evaluation here.

68    To the extent that the interests of the applicant's older sister required separate consideration, in my view the Tribunal did give them adequate consideration. While it did not specifically refer to the impact of the loss of the applicant on her parental role, para 193 of its reasons (which I have quoted at [25] above) does mention the applicant's sister and her oral evidence to the Tribunal and the applicant's quasi-parental role. That paragraph demonstrates, in my view, real intellectual engagement by the Tribunal with the consequences of the removal of the applicant on family members including his sister.

69    In any event, the Tribunal's conclusion on this mandatory consideration was that the applicant's ties to Australia were strong, and weighed strongly in favour of the revocation of the cancellation decision. I accept the Minister's submission that any omission to take these specific matters into account was not material.

70    I do not uphold ground 1.

Ground 2 - applicant's abstention from drugs while in prison

71    By ground 2, the applicant alleges that the Tribunal misconstrued s 500(6H) of the Act as precluding the receipt of evidence he gave to the effect that he had abstained from drugs while in prison. The argument may be summarised as follows:

(1)    The likelihood of the applicant relapsing into drug use was an important aspect of evaluating the likelihood that he would reoffend or otherwise cause harm if he were to be released into the community.

(2)    The applicant had abstained from drug use while in prison.

(3)    In cross-examination before the Tribunal by counsel for the Minister, the applicant made it clear that drugs were available to him in prison, but he had abstained.

(4)    A written report of Dr McCue filed before the hearing expressed concern that the applicant's sobriety had not been tested in the community.

(5)    In examination-in-chief of Dr McCue by counsel for the applicant, after the applicant gave evidence as to his abstinence, Dr McCue said, 'I certainly accept that drugs like methylamphetamine are available in custodial environments, and I think it looks favourably on MKBL'.

(6)    The Tribunal member, during the hearing and just after this evidence, said that in order to take MKBL's evidence into account it would need to appear in one of the written statements, and she could not remember seeing it there, and 'that might sort of create some difficulty'.

(7)    In its reasons the Tribunal expressed concern that the challenges the applicant was likely to face in establishing himself in the community may cause him to relapse into drug use. At para 108 the Tribunal said:

To the Applicant's credit, there is no evidence before the Tribunal of any drug use by the Applicant whilst in prison or immigration detention, and so if he is released into the Australian community, he will be starting from the position of being free from drug use. This may assist him to continue to abstain from drug use in the community and thereby reduce the likelihood of his reoffending. However, prison and immigration detention are controlled environments, and are different to living in a non-prison environment, which the Applicant's sobriety has not been tested in.

(8)    There is no express mention in the Tribunal's reasons of the applicant's evidence that drugs were available to him in prison or of Dr McCue' evidence that this reflected favourably on the applicant.

(9)    That is said to be because the Tribunal implicitly ruled that it could not receive that evidence because in cases such as the present, s 500(6H) of the Act does not permit the Tribunal to have regard to information presented orally in support of an applicant's case unless the information is set out in a written statement given to the Minister at least two business days before the Tribunal's hearing.

(10)    In fact, s 500(6H) did not preclude the receipt of the applicant's oral evidence that drugs had been available to him while in prison, because that evidence was not presented in support of his case, but had been adduced in cross-examination: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [44]. Here, it is said, the Tribunal fell into error.

72    I do not uphold this ground because I do not accept proposition (9), and even if I did I would not consider the error to be material.

73    The Tribunal says nothing in its reasons about having rejected any evidence because of s 500(6H). It is true that the member expressed doubts during the hearing about her ability to take the applicant's evidence on that point into account, which were implicitly based on s 500(6H). But that was immediately after the member herself asked Dr McCue how the possibility that the applicant had been in a prison environment where drugs had not been freely available would 'change things'. The doctor's response was to the effect that it would not. Although declining drugs in prison, if they had been available, would show that the applicant was motivated to change his behaviour, 'I think that the factors and life stresses that are present in the community, they're going to be different and test MKBL's sobriety in a different way anyway'.

74    In that context, the paragraph of the Tribunal's decision which is quoted at [71(7)] above is just as likely to arise out of its view that Dr McCue's evidence meant that it could put little weight on the applicant's apparent abstention in the face of temptation while in prison. The paragraph implicitly accepts that this is indeed what happened in prison, as it would not be '[t]o the Applicant's credit' if he had abstained from drugs in prison if none were available anyway, and the word 'abstain' itself implies a decision not to partake of something that is available. I do not place any significance on the fact that the Tribunal expressed this in terms that there was 'no evidence' of drug use by the applicant in prison. Again, if that was a finding that the Tribunal did not know whether the applicant had used drugs in prison or not, it would not have been to his credit for him to have abstained. The Tribunal's point is clear enough: whatever happened in prison, life in the community would be different. That construction of its reasons is at least as likely as a construction in which the Tribunal refused to receive particular evidence, without saying so.

75    The same analysis leads to the conclusion that even if that second construction is the correct one, the resulting error was not material. The Tribunal's reasons make it abundantly clear that it considered that, whatever challenges the applicant may have faced in prison, the pressures he was likely to meet in the community would be different. That was supported by evidence from the applicant's own expert. I do not consider that the result could have been different if the Tribunal had made a finding that drugs were available to the applicant in prison, and yet he had abstained.

76    I do not uphold ground 2.

Ground 4 - Tribunal's reliance on sentencing judge's assessment of risk of reoffending

77    Under this ground the applicant submits that the Tribunal fell into error by accepting the assessment of the sentencing judge that the risk of the applicant reoffending was high. This is said to be because the pre-sentence report and clinical psychologist's report on which his Honour based that assessment were not before the Tribunal. So, it is said, the Tribunal erred by accepting the 'conclusionary statement' of the sentencing judge. The applicant submits that the Tribunal used the assessment as a 'benchmark' against which it measured the risk of reoffending. Even though its conclusion was that the risk was now lower, its evaluation of the risk was affected by starting at the high level of risk determined by the sentencing judge.

78    There are two why I do not accept this argument. First, the applicant has not established that it was an error for the Tribunal to accept the conclusion of the sentencing judge. The authority on which he relied, Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 does not stand for the proposition that an administrative decision-maker always errs if it accepts the conclusion of another decision-maker without satisfying itself of the correctness of that conclusion. Collins did not concern reliance on just any decision, it concerned the weight that should be given to the decision of the Minister which, in that case, was under review. Also, the court (Fox, Deane and Morling JJ) considered that the distinction between the decision and the reasons for the decision was crucial: see 411-412. It is easy to see how putting weight on the bare fact of the very decision under challenge could be an error. But here, of course, the Tribunal was not reviewing the sentencing judge's decision, and it was putting weight on a finding of fact, albeit a conclusory one, that the judge had made in his reasons for the sentence imposed. Passages in HZCP suggest that this was a perfectly legitimate approach: see [69] (McKerracher J, quoting with evident approval Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at [43]) and [188], [190] (Colvin J).

79    The second reason I do not accept the argument is that I do not accept that the Tribunal treated as some sort of benchmark the sentencing judge's assessment of the risk of reoffending as high. At para 88 the Tribunal noted that assessment, noted also that the reports were not before the Tribunal, and said that the sentencing judge's comments were 'a cause for concern with respect to the likelihood of the Applicant re-offending, especially as they were made less than two years ago'. That reasoning was open to the Tribunal; it could be said that it would have been irrational for it not to be concerned by such comments from the sentencing judge.

80    But the Tribunal then embarked on a detailed examination of the evidence before it as to the many factors which bore upon the risk of the applicant reoffending. After that examination, the Tribunal said (at para 116):

Taking into account the evidence of Dr McCue, the Applicant's attempts to obtain rehabilitation treatment and to attend programs, as well as the other protective and mitigating factors above, the Tribunal accepts that this risk is likely to now be lower than the 'high' risk that the Applicant posed as the time of his conviction, as identified by the sentencing judge. However the Tribunal is of the opinion that a risk nevertheless remains.

81    While the conclusion is expressed in terms of a comparison with the sentencing judge's finding about the risk of reoffending, in the context of the Tribunal's detailed discussion of the evidence about that risk, it is best understood as saying that the Tribunal's own assessment was different, acknowledging that time had passed since the sentence was imposed. In short, I am satisfied that the Tribunal reached its own independent view of the risk based on the material before it, as it was its duty to do. I do not uphold ground 4.

Conclusion

82    Ground 3 succeeds. The decision of the Tribunal must be set aside and the matter remitted to it to determine according to law. Costs must follow the event.

Associate:

Dated:    22 December 2020