Federal Court of Australia

RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

BACKGROUND

1    The applicant is a citizen of the United Kingdom. He arrived in Australia in November 1972 at the age of 8 years. Since September 1994, he has held by operation of law a class BF Transitional (Permanent) visa.

2    The applicant has a lengthy criminal history. Between 1983 and 2011 he was convicted of 70 offences. Relevantly, in August 2012, he received a conditionally suspended sentence of 12 months imprisonment for possession of child exploitation material. In 2008, he was sentenced to a 12 month community based order for indecent dealings with a child who is a lineal relative or de facto child. In 2007, the applicant received a total effective sentence of 14 months imprisonment in respect of one count of supplying child pornography and three counts of possession of child pornography. These are the only sexual offences. Between 1983 and 2010, the applicant was convicted of numerous driving offences, including multiple counts of driving under the influence of alcohol with the last such offence committed on 18 November 2009. In the 1980s and 1990s the applicant was convicted of various general offences including stealing as a servant, breaking and entering, and criminal damage.

3     The applicant has not, however, been convicted of any offences since 2012.

4    In 2019, the Department of Home Affairs wrote to the applicant giving him a notice of intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) on the basis that he had a substantial criminal record. The applicant was invited to comment on the information and to provide reasons why his visa should not be cancelled, even if he did not pass the character test. That he does not pass the character test is common ground. The applicant had previously received a formal counselling letter from the Department in 2008 to the effect that further offending could result in cancellation.

5    On 1 October 2019, the applicant provided information and documents to the Department in support of non-cancellation of his visa. In December 2019, a delegate of the Minister decided to cancel the applicant’s visa under s 501(2) of the Migration Act on the basis that the applicant has a substantial criminal record pursuant to s 501(6) and s 501(7)(c) of the Migration Act.

6    The applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal. The Tribunal affirmed the decision under review and the applicant then filed this application for judicial review of the Tribunal’s decision in this Court.

GROUNDS OF THE APPLICATION

7    Two grounds of review are pressed in the amended application as follows:

1.    The [Tribunal] made a jurisdictional error by making a finding of fact which had no logical or probative basis and/or was unreasonable.

Particulars

a.    The Tribunal was required to review the decision of the First Respondent to cancel the Applicant’s visa under s.501(2) of the Migration Act 1958 (Cth) (Act).

b.    In conducting the review, the Tribunal was bound by Direction no. 79.

c.    Paragraph 9.1.2(2)(b) of Direction no. 79 required the Tribunal to take into account the likelihood of the Applicant engaging in further criminal or serious conduct.

d.    The Tribunal found that the Applicant posed a moderate risk of reoffending (Decision record (DR) [142]).

e.    The Tribunal’s said finding had no logical or probative basis and/or was unreasonable in all the circumstances of the case (the error).

f.    The error was material as it increased the adverse weight given to the first primary consideration, protection of the Australian community.

2.    The Tribunal made a jurisdictional error by misconstruing or misapplying paragraph 9.1.2(2)(a) of Direction no. 79.

Particulars

a.    The Tribunal was required to review the decision of the First Respondent to cancel the Applicant’s visa under s.501(2) of the Act.

b.    In conducting the review, the Tribunal was bound by Direction no. 79.

c.    Paragraph 9.1.2(2)(a) of Direction no. 79 required the Tribunal to take into account the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct.

d.    The Tribunal found that the nature of the harm was very serious (DR [121]).

e.    The Tribunal’s said finding was based on its earlier reasoning and findings about what the nature of the harm could be (DR [118]-[120]).

f.    The Tribunal misapplied or misconstrued paragraph 9.1.2(2)(a) of Direction no. 79 by making findings about what the nature of the harm could be, rather than what the nature of the harm would be (the error).

g.    The error was material as it increased the adverse weight given to the first primary consideration, protection of the Australian community.

(Emphasis in original.)

IN THE TRIBUNAL

8    The issues for determination before the Tribunal were whether the applicant passed the character test and, secondly, if he did not, whether the discretion to cancel his visa ought be exercised having regard to the considerations in Direction No. 79, the long title of which is ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’. The applicant has never contended that he passes the character test.

9    The Tribunal took into account the first primary consideration, namely, the protection of the Australian community in a lengthy analysis at [81]-[142] of its reasons. It commenced its assessment of the risk to the Australian community posed by the applicant were the applicant to reoffend at [109]. The applicant seeks to impugn a number of the findings in this section of the reasons in relation to the Tribunal’s assessment that there was a ‘moderate risk’ that he would reoffend, and additionally, that at [118]-[121] the Tribunal engaged in speculation without a proper basis as to the resulting harm from any potential reoffending such that it misapplied Direction No. 79.

10    The Tribunal acknowledged the applicant’s contention that he posed no risk of reoffending (at [113]). It accepted (at [117] and [141]) that the applicant had not reoffended since his last conviction in 2012, which was for an offence committed in 2011. In those paragraphs, the Tribunal said:

117.    The Tribunal notes that the Applicant has not reoffended since being convicted in 2012 in relation to the child exploitation material offence. That is a factor which the Tribunal regards must weigh significantly in his favour in assessing his risk of reoffending.

…

141.    Paragraph 9.1.2(2)(b)(ii) of Direction no. 79 provides that the Tribunal can give weight to the time in the community since the Applicant’s most recent offence. As noted above, the Applicant was in the community without committing any offences since 2011. This is a factor that weighs in the Applicant’s favour.

(Citations omitted, emphasis added.)

11    The Tribunal also made findings about the nature of the harm that could be caused if the applicant were to reoffend. At [118]-[120], the Tribunal said:

118.    Regarding the nature of the harm to individuals if the Applicant were to engage in further criminal or other serious conduct, the Applicant has a history of serious offending. Should the Applicant commit similar offences in the future members of the community could suffer serious harm,

119.    The devastating effects of the consumption of child pornography have been highlighted in the comments of the Sentencing Judges above. Should the Applicant reoffend his actions would contribute to an industry which places children around the world at risk of physical, emotional and psychological harm. It further normalises and encourages sexual inclinations which society has determined to be a serious risk to children who are in need of protection from some attitudes and behaviours. Further, should the Applicant seek to act on those attractions on children he has contact with, the harm to those children could be very serious.

120.    Further, as noted above in the assessment of the seriousness of the Applicant’s offending, if the Applicant were to commit driving offences in the future, such as driving under the influence of alcohol, members of the public could suffer serious injury or even death if an accident resulted.

(Citations omitted.)

12    The Tribunal concluded (at [121]) that the harm to individuals or the community should the applicant reoffend in a similar manner was:

very serious and includes physical, psychological and emotional harm to children and a risk of physical injury or death to members of the public through motor vehicle accidents.

13    The Tribunal considered the remarks of the sentencing judges relevant to the risk of the applicant reoffending, noting (at [123]) that Wager DCJ, said during the applicant’s sentencing hearing on 26 October 2007:

Since treatment needs are predictive of reoffence, the fact that [the Applicant] is assessed to have significant treatment needs in the domains of social emotional functioning and self-management, suggest that his risk may be elevated.

…

In the event that his emotional issues remain unaddressed, the risk of [the Applicant] engaging in future alcohol abuse and subsequent sexual reoffending, offending behaviour is likely to remain [unaltered].

…

So it’s very clear to me from that report and indeed from the pre-sentence report that you have treatment needs and that those needs extend to a lot of issues in your past and also to your abuse of alcohol and also specifically to the matters that led to the offending on this occasion.

(Citations omitted.)

14    The Tribunal also noted remarks made by Goetze DCJ during the applicant’s sentencing hearing on 20 August 2012 and said (at [126]):

In sentencing the Applicant for the possessing child exploitation material offence in August 2012, Goetze DCJ indicated that he also had a psychological and general pre-sentence reports before him, and that:

The pre-sentence report indicates that you are at a high risk of reoffending, that you are sexually attracted to pre-pubescent females. You need a sex offender treatment programme, you need substance abuse counselling and you have mental health issues… Parts of that report were objected to and Mr Perrella has conceded that Mr Smith has a point in terms of those objections.

The psychological report says that you need a sex offender program. You need also help with substance abuse and anxiety and depression and the need for counselling. This morning you have heard the discussion between me and counsel – that the problem in terms of you getting the sex offender treatment program is that it’s not readily available in custody for you here in Geraldton.

There is, however, a sex offender treatment program that Mr Smith tells me is available for you, as I put it during the course of discussion, off the street. The state require you or make the submission [sic] at least that you need that sex offender treatment program and that can’t be disputed. I will come back that.

…

I accept there is a risk of you reoffending and I accept that this is a serious charge but it seems to me that you have made efforts at your own rehabilitation. I have mentioned your job, your accommodation, your attendance at Midwest Mental Health Services and at AA. What you also need is a sex offender treatment program which you are not going to get if I send you to gaol but I can conditionally release you from that gaol sentence if you are willing to attend a sex offender treatment out of the custodial situation. Are you prepared to do that?

[the Applicant]: Yes, sir.

Goetze DCJ: All right. Then I am prepared to suspend the term. What I am going to do is give you a term of imprisonment for one year conditionally suspended on the basis that you attend a sex offender treatment program, that you have a substance abuse counselling and also such treatment or counselling as may be required for your depression and anxiety. Are you prepared to go along with that?

[the Applicant]: Yes, sir.

(Citations omitted, emphasis added.)

15    The Tribunal repeatedly noted that the applicant did not complete a sex offender treatment program despite the clear expectation that he would in the remarks of Goetze DCJ. It accepted that one had not been available to him in custody in 2007-2008 or in the town where he resided in 2012-2013 when he was subject to a conditionally suspended imprisonment order. It also accepted that the applicant had not breached his conditionally suspended imprisonment order by not completing such a program. However, notwithstanding this, the Tribunal found that the applicant’s failure to complete a sex offender treatment program was a cause of significant concern with respect to the ongoing risk of his reoffending. At [129], the Tribunal said:

However, it remains that the Applicant has not completed a sex offender treatment program either in prison or in the community notwithstanding he was assessed to need such a program due to “a high risk of reoffending” and a sexual attraction to prepubescent females. The Tribunal accepts there may have been a two-year wait for the program, the Applicant has had 7-8 years to find and complete a suitable program since he was convicted in 2012 and his Honour detailed to the Applicant the assessment of his risks. This calls into question the Applicant’s commitment to addressing the underlying causes of his offending and to reducing the risk of reoffending of his own volition. This causes the Tribunal to have significant concerns regarding the Applicant’s ongoing risk of reoffending. In this regard the Tribunal notes, as indicated to the Applicant at the hearing, that it has no power to compel the Applicant to attend a program or to accept or enforce an undertaking on his part to do so.

16    The expression ‘high risk of reoffending’ was used in a pre-sentence report that was before Goetze DCJ at the sentencing hearing on 20 August 2012. His Honour had noted in the course of the remarks that there had been objections raised to parts of that pre-sentence report by defence counsel and that the prosecutor had acknowledged that defence counsel ‘had a point in terms of those objections’. These remarks were extracted by the Tribunal (at [126]) of its reasons, although the pre-sentence report itself was not before the Tribunal.

17    The Tribunal did however accept that the applicant had undertaken 27 counselling sessions since 2016. These sessions included identifying strategies to prevent the applicant from accessing child pornography and to address his alcohol consumption. The counsellor noted the applicant’s significant reduction in alcohol consumption.

18    The Tribunal concluded that the applicant lacked insight into some of his offending, namely, the distribution of child pornography which was committed on 11 May 2007 and the indecent dealing which was committed on 1 January 2006. It is said that this was relevant and indicative of an ongoing risk of reoffending. At [134]-[140], the Tribunal said:

134.    While the Tribunal commends the Applicant for seeking help through counselling, the Tribunal has a number of concerns with the evidence regarding the sessions. This includes that it does not appear that the Applicant has divulged his full offending history including with respect to supplying child pornography and his indecent dealing conviction. This throws some doubt on the Applicant’s commitment to the counselling process in terms of rehabilitation and addressing the causes of his offending. It is also consistent with the Applicant’s denial of responsibility for the indecent dealing offending and of any sexual intent with the supply of the image of his step-daughter to the persona. This suggests the Applicant continues to lack insight into his sexual offending and in the Tribunal’s view this indicates an ongoing risk of reoffending.

135.    The Applicant is a registered sex offender and claims that he has never missed an ANCOR (Australian National Child Offender Register) meeting. At the hearing the Tribunal queried what was involved in or required by such meetings. The Applicant said that he has to attend every six months without fail is liable to a $12,000 fine or imprisonment [sic]. The Applicant indicated that the meetings were held at the police station and the police asking questions regarding matters including whether his circumstances have changed. He said that there are no other obligations that he was aware of. The Tribunal accepts that the Applicant’s inclusion on ANCOR may act to increase his visibility to authorities and to deter reoffending. However, the Tribunal also notes the Applicant’s reporting obligations are quite limited and do not appear to be directed at the causes of the Applicant’s offending.

136.    The Tribunal notes that the Applicant claimed not to present a risk of reoffending because his sex drive had decreased with age and medication. However, he did not offer any evidence to support this assertion, including from his treating practitioner who provided a letter dated 24 September 2019. The counselling letter also does not provide any evidence to support the assertion that a lack or diminution in the Applicant’s sex drive has reduced or removed the risk of reoffending earlier identified by Goetze DCJ. The Tribunal is aware of decisions where studies concerning the risk of recidivism among older offenders has been considered. However, the Tribunal notes such material was not before the Tribunal. Further, the cases in which the issue arose involved offenders significantly older than the Applicant and the applicability of the research to the Applicant’s circumstances is not clear. Further, even accepting his claims at their highest, that his libido has dropped due to the Applicant’s ‘past life’, current medications and age, while the Tribunal is prepared to accept the Applicant’s libido may have lessened, in light of the lack of evidence to support this, the Tribunal does not place significant weight on it in terms of assessing the Applicant’s risk of reoffending.

137.    The Applicant’s testimony, criminal record and the comments of the Sentencing Judge’s indicate strongly that alcohol has been a factor in the Applicant’s offending. There is evidence that the Applicant still consumes alcohol. The Tribunal notes that the Applicant submitted his reduced alcohol consumption in the context of his heart problems and continues to consume alcohol though at a much reduced rate, assisted by medication [sic]. While the Tribunal commends the Applicant’s efforts to reduce his alcohol intake and recognises he has not committed any alcohol related traffic offences since 2008, given the seriousness of his past history and the observations of the Sentencing Judge’s that alcohol was a factor in his offending, any ongoing alcohol consumption by the Applicant is of concern and contributes to the risk he may reoffend.

138.    The Applicant showed little insight into his driving and traffic related offending. However, he has demonstrated an ability to avoid this type of offending for a sustained period and when the Tribunal asked about his business arrangements, he indicated he pays a driver where needed. This demonstrated to the Tribunal he understood he was unable to drive and has some insight into this aspect of his offending.

139.    The Applicant has some pro-social support persons in the community, as indicated by his character references however, most of those who provided references were of the nature of employers and the two witnesses who testified at the hearing were only partly aware of his prior offending history. These letters attested to the Applicant’s work ethic, reliability and trustworthiness, though with respect to this aspect both witnesses at the hearing confirmed that the Applicant had not divulged to them elements of his offending history which might have been pertinent to these assessments including his conviction for indecent dealing and stealing as a servant.

140.    Notwithstanding this the Tribunal accepted the witnesses evidence as supporting his contention that he can conduct himself as a productive member of his community, remain gainfully employed and not offend for a sustained period. The Tribunal places weight on the character references in this regard.

(Citations omitted.)

19    At [142], the Tribunal found the applicant posed a moderate risk of reoffending and that overall the first primary consideration weighed in favour of cancellation of the applicant’s visa. Later (at [197]), the Tribunal found that the first primary consideration weighed ‘strongly’ against the applicant. It also found that the third primary consideration, namely, the expectations of the Australian community weighed in favour of cancellation of the applicant’s visa. The Tribunal found that the ‘other’ considerations, firstly, strength, nature and duration of ties to Australia, weighed against cancellation of the applicant’s visa due to his having lived in Australia for 47 years and the positive contributions he had made to the Australian community through his work in several businesses as both an employee and employer. The Tribunal found that this consideration weighed strongly in favour of the applicant. Secondly, it found that the consideration of the, extent of impediments if removed weighed slightly against cancellation. The Tribunal acknowledged in its conclusions that ‘there are no easy answers in a case like the applicant’s’ (at [199]) and that, having weighed all of the considerations, the correct or preferable decision was to affirm the delegate’s decision.

GROUND 1

20    The first ground raised by the applicant turns on legal unreasonableness. The applicant says there are two contexts in which legal unreasonableness may arise. First, a conclusion based on a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration or having regard to an irrelevant consideration and, secondly, an ‘outcome focussed’ conclusion without any specific jurisdictional error being identified. As authority for both propositions, the applicant relies on Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (at [60] and the authorities cited therein).

21    In Weti-Safwan v Minister for Immigration and Border Protection [2018] FCA 1761, Jagot J said at (at [37]):

The most that can be said here is that although attention must ultimately be paid to the particular decision and its statutory context, jurisdictional error due to legal unreasonableness will generally be present only if: (a) no reasonable decision maker could have made the same inferences, findings or decisions on the basis of the material before them; or (b) the decision maker adopted unwarranted assumptions or false premises that meant there was no logical connection between the evidence and their inferences, findings or decisions; or (c) there was no evident or intelligible justification for their inferences, findings or decisions …

(citing DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2: (2018) 258 FCR 175 (at [30]).

22    The applicant acknowledges that review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole failed to conform to the implied statutory standard of reasonableness: Tsvetnenko v United States of America (2019) 269 FCR 225 (at [85]). However, the applicant also says jurisdictional error may exist where unreasonableness is demonstrated in relation to findings ‘on the way’ to a final conclusion and he relies on Chan v Minister for Immigration and Border Protection [2018] FCA 1323 per Yates J (at [36]); and CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (at [60]), citing Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 (at [54]), where his Honour referred to the decision of their Honours Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [132]), amongst other cases.

23    However, as noted by Crennan and Bell JJ in SZMDS (at [131]), the test for unreasonableness or irrationality must be to ask whether logical or rational or reasonable minds might differ in any decision or finding to be made on evidence upon which the decision is based. In the same paragraph, their Honours said that if probative evidence can give rise to a different process of reasoning, and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

24    The applicant stresses that the relevant risk of reoffending was the risk at the time of the review. The factors relevant to the risk necessarily included historical matters, but any rational or reasonable assessment had to involve identifying the significance or insignificance of historical circumstances in the light of present circumstances and giving proper weight to both historical and present circumstances. He notes that the Tribunal reached its adverse assessment of the applicant’s risk of offending on the following bases:

(a)    his criminal history;

(b)    adverse remarks made by Wager DCJ and Goetz DCJ in sentencing the applicant in 2008 and 2012 respectively;

(c)    the applicant’s failure to complete a sex offender treatment program;

(d)    the assessment of the applicant being a ‘high risk of reoffending’ in the pre-sentence report before Goetze DCJ;

(e)    the applicant’s lack of insight into certain of his offences; and

(f)    the applicant’s ongoing consumption of alcohol.

25    The applicant’s main point is that with respect to his criminal history and the adverse sentencing remarks, these were entirely historical factors. In circumstances where he had not offended for at least eight years while living in the community, and there was no evidence that he might recommence offending, such factors could not reasonably justify a finding that there was a moderate risk of his reoffending. As to the sex offending treatment program and the applicant’s lack of insight into his offending, the applicants says these were factors that could not establish that there was a risk that the applicant would reoffend. Had he completed such a program and had he demonstrated insight into his offending, this may have tended to reduce any risk of reoffending. However, in circumstances where he had already ceased offending for a period of at least eight years while living in the community, and there was no evidence that he might recommence offending, the applicant says there was no risk to reduce.

26    The applicant argues that with respect to the assessment of his being a high risk of reoffending, it was unreasonable for the Tribunal to take into account and adopt as correct the comments contained in a pre-sentence report which was objected to and was not before the Tribunal and not adopted by the sentencing judge, who merely stated that there was ‘a risk of [the applicant] offending’, not a high risk. There was, therefore the applicant argues, no logical or probative basis for the Tribunal to adopt the opinion that the applicant was a high risk of reoffending as correct and it was unreasonable for it place any weight upon it.

27    This characterisation of the Tribunal’s use of Goetze DCJ’s sentencing remarks in relation to the pre-sentencing report goes too far. While the Tribunal quoted the relevant passage from the sentencing remarks and referred to the high risk again in the context of explaining why Goetze DCJ considered it imperative that the applicant complete a sex offender treatment program, the Tribunal did not adopt that finding as its own. Rather, in weighing a number of factors the Tribunal reached a different assessment, finding instead a moderate risk of reoffending. The sentencing remarks do not specify which parts of the pre-sentence report were objected to, but in the circumstances where Goetze DCJ considered there to be merit in those objections and proceeded to rely on other parts of the report (including the assessment of a high risk of reoffending) it is not unreasonable for the Tribunal to have regard to these comments. It is reasonable to infer that the parts of the report to which objections were raised were not relied upon by the sentencing judge in circumstances where the judge noted the merit in those objections.

28    In relation to the consumption of alcohol, the applicant says there was no basis for the Tribunal to conclude this would add to the risk of the applicant reoffending because the Tribunal accepted (at [132]) the applicant had reduced his intake of alcohol to ‘a few beers a day’. No finding was reached on this topic by the Tribunal the applicant says, and it follows that the bases for the Tribunal concluding that there was a moderate risk of the applicant reoffending were undermined by unreasonableness.

29    In considering the applicant’s submission on the first ground, The Tribunal’s finding that there was a moderate risk of the applicant reoffending might well be a conclusion on which logical or rational or reasonable minds might differ. Other rational minds might have considered the risk was low, particularly having regard to the time since his last offence. However, the fact that other logical or rational or reasonable minds might have found that there was a low risk of the applicant reoffending does not give rise to legal unreasonableness so as to constitute jurisdictional error. It cannot be said in this instance that on the evidence and material before the Tribunal no logical or rational or reasonable mind could have concluded that the risk of reoffending was moderate. The analysis by the Tribunal was detailed, careful and considered.

30    The applicant submits his criminal history and adverse sentencing remarks were entirely historical and that he had not offended for at least eight years while living in the community and there was no evidence that he might recommence offending. He contends that these factors could not reasonably justify a finding that there was a moderate risk of offending. However, the Tribunal did not confine its consideration to those matters. It considered these matters along with a range of other evidence and material in reaching its conclusion. Nor did it overlook the time that had passed since the last conviction. It expressly took into account in the applicant’s favour the fact that the applicant had not offended since 2012, as noted in the Tribunal’s reasons (at [117], [128], [140] and [141]).

31    As noted, in considering the risk of reoffending, the Tribunal had regard to the fact that the applicant did not complete a sex offender treatment program. The Tribunal reasoned (at [129]) that despite the applicant indicating in the sentencing remarks that he would complete the program if given a suspended sentence, he was still yet to do so some seven to eight years later. The Tribunal considered this called into question the applicant’s commitment to addressing the underlying causes of his offending and to reducing the risk of reoffending of his own volition. There is nothing illogical or irrational about this line of reasoning, particularly whereas here, the Tribunal also expressly weighed the fact that the applicant had not reoffended since 2012 in his favour when reaching the conclusion that he posed a moderate risk of reoffending.

32    As to alcohol consumption, while the Tribunal did quote (at [132]) from a letter written by the applicant’s counsellor that he had significantly reduced his consumption to ‘a few beers a day’, it also considered (at [137]) in the context of the seriousness of the previous offending and the role of alcohol consumption in that offending, as recognised by the sentencing judges, that any alcohol consumption was of concern. The applicant’s submission that there was no basis for the Tribunal to conclude that alcohol consumption would add to the risk of reoffending cannot, with respect, be accepted. The basis is clearly in the seriousness of the past offending and the contribution of alcohol consumption as recognised by the sentencing judges (at [123]).

33    The difficulty is that the arguments for the applicant pick off these individual considerations by the Tribunal one by one, whereas in reality, the Tribunal took considerable care to consider the totality of the circumstances which it regarded as material and to give different weight according to each particular factor as it saw fit, including factors which favoured the applicant. Given the totality of the factors, it could not be said that no rational person could have reached the same conclusion.

34    Ground 1 cannot succeed.

GROUND 2

35    On ground 2, the applicant contends that the Tribunal misconstrued or misapplied [9.1.2(2)(a)] of Direction No. 79 which requires a decision-maker to have regard to:

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

36    It is clear that non-compliance by a Tribunal with a Direction made under s 499 of the Migration Act can constitute jurisdictional error, as noted by Mortimer J in PQSM v Minister for Home Affairs [2020] FCAFC 125 (at [37]), with whom Banks-Smith and Jackson JJ agreed on that point (at [90]). This ground turns on whether the Tribunal was permitted to speculate or as the applicant put it, ‘catastrophize’ about the nature of the harm that could be caused by the applicant reoffending or whether it was required to limit its assessment to the nature of the harm that would most likely be caused by the applicant reoffending.

37    For the applicant it is contended that the context in which [9.1.2(2)(a)] appears supports the inference that the Tribunal’s task was to assess the nature of the harm that would be caused, rather than the nature of the harm that could be caused by the applicant reoffending. That context includes:

(a)    the reference in [9.1.2(1)] to ‘the harm that would be caused if [the conduct] were to be repeated’; and the reference in [6.3(4)] (which informs the taking into account of all considerations) to the ‘harm that would be caused if [the conduct] were to be repeated’;

(b)    the requirements under [8(2)] and [9.1.2(2)(b)] that the Tribunal have regard to ‘information’ and ‘evidence’ from independent and authoritative sources in assessing the likelihood of an applicant reoffending. The applicant says this supports an inference that the assessment of the risk to the Australian community should be evidence-based and logical rather than an exercise in speculation. This would necessarily require the assessment of the nature of the harm to be evidence-based and logical rather than speculative; and

(c)    the inherently implausible proposition that it was the intent of the Minister in issuing Direction No 79 to direct decision-makers to assess the risk to the Australian community by, in part, speculating about remote possibilities of harm.

38    The applicant says that the Tribunal has assessed the nature of the harm that could be caused by the applicant reoffending in its assessment set out at [118]-[121] (quoted above at [11]-[12]). At the first part of this passage, the Tribunal repeatedly made findings about the nature of the harm that could be caused if the applicant reoffended. At no point did it make any findings about the nature of the harm that would likely be caused if he reoffended. It then concluded (at [121]) by finding that the nature of the harm was ‘very serious and includes physical, psychological and emotional harm to children and a risk of physical injury or death to members of the public through motor vehicle accidents’; this finding compiling its earlier findings (at [118]-[120]) about what the nature of the harm could be. The Tribunal in concluding its findings about the first primary consideration (at [142]) stated that the ‘nature of the harm that could result … could be very serious’.

39    The error in this approach, according to the applicant, is that the Tribunal’s finding about the nature of the harm that could be caused by the applicant reoffending were completely disconnected from any of the evidence before it such that it was an exercise in speculation. There was no reference to any harm caused by the applicant to date (the applicant contends that his particular offences have caused little or no harm) and the Tribunal accepted (at [99]) that there was no trend of increasing seriousness in the applicant’s offending. Indeed, the applicant says the opposite was plainly true.

40    Although the Tribunal considered the applicant’s offending to be very serious, that seriousness is said not to derive from the harm that was actually caused by his offending. The applicant says there is no basis in the evidence to assert that the applicant has previously caused harm of the nature described by the Tribunal (at [121]) and accordingly, there was no basis in evidence to suggest that any of these outcomes might eventuate if the applicant were to reoffend. The applicant says that the Tribunal’s approach was incongruous. On the one hand, it relied upon the applicant’s criminal history to infer that there was a likelihood of reoffending. On the other, when it came to the nature of harm should he reoffend, the Tribunal has ignored the fact that the applicant’s offending to date has resulted, he says, in limited, if any, harm.

41    In considering the Tribunal’s assessment under [9.1.2(2)] of the Direction No. 79, it is important to appreciate that the Tribunal is required to reach a conclusion on the nature of harm to the Australian community having regard to the likelihood of any harm occurring and the seriousness of that harm if it did occur. The Tribunal recognised as much when it said (at [111]):

In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [94]-[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [42]-[43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does. [Footnotes omitted.]

42    It can be seen then that the process required in carrying out compliance with the Direction necessarily involves a degree of speculation or estimation as the Tribunal is required to consider a hypothetical future. The assumption is to be based on an applicant continuing offending.

43    The Applicant’s true complaint is that there was no proper basis to assume any harm at all given that his offending, he says, had caused little or no harm. This contention, with respect, ignores the detailed consideration that the Tribunal gave to the nature of the applicant’s offences (at [53]-[64]) and fails to have regard to the reasons of the Tribunal as a whole. At [54], the Tribunal records the applicant’s conduct that constituted the indecent dealing offence:

The circumstances of the offence are outlined in the Western Australia Police Statement of Material Facts for the offence which indicates that, at some time between 1 March 2006 and 30 June 2006, the Applicant asked his partner’s daughter to go for a drive with him to the river. The child did not wish to go but the Applicant told her to get in the car. They drove to the river crossing in [Town C]. The Applicant asked the child to take off her clothes, so that she could have a swim, but she declined. The Applicant then reached over and put his hand up the child’s skirt and rubbed the top of her thigh. The victim pushed his hand away, but the Applicant again put his hand under her skirt and rubbed the top of her thigh area again. However, he stopped when the victim indicated that she would tell her mother. The Applicant had been in a de facto relationship with the victim’s mother for seven years.

(Citations omitted.)

44    Similarly, in relation to the child pornography offences, the Tribunal records the relevant conduct (at [57]-[58]) as follows:

57.    The facts of those offences are set out in the Sentencing Remarks of Wager DCJ, and the Western Australia Police Statement of Material Facts. According to this material, on 7 May 2007, the Applicant made contact, via the Internet, with an undercover police officer in Queensland (“James”), who was using a persona. They maintained an Internet chat conversation for several days, and, on 11 May 2017, the Applicant sent the police operative 11 images of children in a naked state, in various sexual poses with each other and men. The Applicant also sent the operative a non-sexual image of his de facto stepdaughter. The Sentencing Judge noted that this image had been sent to the persona who had disclosed to the Applicant “predatory and repugnant conduct” including with respect to her (the persona’s) own daughters.

58.    On 17 May 2007, computers in the Applicant’s possession were seized under warrant by police. On those devices police located:

•    797 images of naked children, in various sexual positions with adults and each other;

•    10 videos of children involved in sexual activity with adults and each other; and

•    three sexually explicit stories relating to children

(Citations omitted.)

45    I am unable to accept the contention that this offending caused ‘little or no harm’, such that there would be no basis for a finding that future offending of a similar nature could or would cause harm. The Tribunal adopted (at [91]) the remarks of Wager DCJ about the reasons why child pornography offences are viewed so seriously in that, beyond the encouragement and inclination it gives to those who are sexually attracted to children to regard such conduct with any degree of normalcy, the supply of such material ‘frequently requires that children will be sexually abused in order to supply it.’ Having made those observations, it cannot be said that there was no basis for concluding that the applicant’s possession of a significant quantity of child pornography in the past provided no basis for a finding that harm could be caused in the future if he were to reoffend.

46    Further, it is not established that the child with whom the applicant indecently dealt (his daughter-in-law) suffered no psychological harm. It is self-evident from the fact that sexual crimes and crimes against vulnerable people are expressly treated as serious under [9.1.1(1)] of Direction No. 79 that these crimes are likely to cause serious and unacceptable harm.

47    It may be accepted however that the 2012 offence concerning possession of fantasy stories poses a much lower risk of harm if committed in the future.

48    It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. Thus, possession and supply of child pornography is sanctioned because of the risk to children generally, who are inevitably abused to create such material and may be at greater risk of predatory behaviour by those who are encouraged by such material. In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users.

49    When understood in this way, it is accepted that the Tribunal did engage in some speculation (at [115]-[121]) about the nature of the harm to the Australian community should the applicant reoffend. However such speculation was grounded in evidence of the seriousness of the applicant’s prior offences, and necessary to the extent that no decision-maker could be satisfied that harm ‘would’ occur in the future where harm is not an element of the offences in question. I do not accept that the use of the term ‘could’ instead of ‘would’ indicates that the Tribunal catastrophized or engaged in baseless speculation.

50    It was not an error for the Tribunal to apply [9.1.2(2)] of Direction No. 79 by asking what harm ‘could’ be caused should the applicant reoffend in circumstances where that analysis was clearly based on what could be a reasonably foreseeable consequence of further offences having regard to the seriousness of the offences already committed.

51    Ground 2 is also not made out.

CONCLUSION

52    For these reasons, neither ground can succeed. The application must be dismissed with costs.

Associate:

Dated:    24 March 2021