Federal Court of Australia

Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 428

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely on the amended originating application for review of a migration decision dated 20 November 2020 (the originating application).

2.    The originating application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The applicant was the holder of a Class BF transitional (permanent) visa (the transitional (permanent) visa). It was cancelled mandatorily on 27 March 2018 (the cancellation decision) under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act (substantial criminal record) based on s 501(7)(c) and because, at that time, the applicant was serving a sentence of imprisonment, on a full-time basis, in Mount Gambier Prison, South Australia. On 1 December 2017, the applicant had been convicted in the District Court of South Australia on four counts of possessing child pornography for which he was sentenced, on all charges, to three years and two months imprisonment, with a non-parole period of 18 months.

2    At the time of the cancellation decision, the applicant was also the holder of an absorbed person visa under s 34 of the Act. The decision to cancel the applicant’s transitional (permanent) visa had the effect that a decision was also taken to have been made to cancel his absorbed person visa: s 501F(3) of the Act.

3    The reason for, and nature of, an absorbed person visa, and its relationship to a transitional (permanent) visa, are discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (Nystrom), conveniently at [94] – [114] (Heydon and Crennan JJ).

4    Section 501CA(4) of the Act provides that the Minister may revoke a cancellation decision under s 501(3A) if representations are made in accordance with an invitation given under s 501CA(3)(b) of the Act and the Minister is satisfied that the person passes the character test or, if that test is not passed, there is another reason why the cancellation decision should be revoked: s 501CA(4).

5    The applicant made representations to the Minister pursuant to an invitation given on 12 February 2019. On the basis of the representations then made, the Minister was not satisfied that the applicant passed the character test; nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. In these circumstances, the cancellation decision remains.

6    The applicant has applied for judicial review of the Minister’s decision not to revoke the cancellation decision.

The Minister’s reasons

7    The Minister’s reasons show that he considered a number of matters concerning the applicant when enquiring whether, absent the applicant satisfying the character test (which he did not satisfy), there was another reason why the cancellation decision should be revoked. It is only necessary to refer to two of those matters—in broad terms, the nature of the applicant’s criminal offending and the risk that this posed to the Australian community, on the Minister’s assessment. I have referred to the applicant’s convictions for possessing child pornography. His criminal offending is more extensive.

8    Dealing firstly with the possession of child pornography offences, the Minister made the following findings based on the remarks of the sentencing judge, outlining the applicant’s various offences and their seriousness:

46.    The circumstances of his offending are described in the Sentencing Remarks as follows. On 15 April 2014, Mr CRAIG's car was stopped by the police when a Samsung mobile and an iPhone were found in his car, which contained child exploitation material. The police subsequently searched Mr CRAIG's home and located a digital camera, a laptop, USB drives and a computer, two SD cards, two iPhones and a recordable hard drive. A total of more than 900 images of child exploitation material of various categories were found as detailed below, albeit some of them were duplicated across these devices.

•    On the camera – a total of 11 images, all in the aggravated category 1, being sexually suggestive poses;

•    On the iPhone found in the car – a total of 505 images, with 26 in the basic category (most at levels 1 and 2, three at level 5) and 479 in the aggravated category (456 of those were level 1, 13 at level 2 and 10 at level 3);

•    On the Samsung mobile phone – a total of 167 images, most of these fell into level 1, although there were 14 images at level 3 and two at level 4 in the aggravated category;

•    On the laptop – a total of 178 images, 19 in the basic category and 159 in the aggravated category (most are in category 1 but there are some at levels 2, 3 and 4);

•    On the USBs - most of the images were in the aggravated category;

•    In the EM machine and hard drive – a total of 40 images, 35 in the aggravated category;

•    On a black iPhone – a total of 58 images, 54 were in the aggravated category.

47.     In term of seriousness of the offending, I concur with the Judge that the offences of possessing child exploitation material are 'very serious' in nature. I am cognisant that the offence involves vulnerable victims because real children are abused in the taking of those images, to cater for a market created by viewers. I am mindful that Mr CRAIG's child pornography offences are sexual offences against vulnerable members of the community. I hold the view that such offending is very serious in nature and is repugnant to the Australian community.

9    After noting that the sentences imposed on the applicant for these contraventions were indicative of their seriousness, the Minister said:

50.     I am conscious that the creation date for the child pornography images on Mr CRAIG's devices were within the 12-month period while he was on a good behaviour bond imposed in 2012. Although he was not charged for breaching that bond, I find that Mr CRAIG offended while he was on conditional liberty, which adds to the seriousness of his offending.

10    The Minister then considered the applicant’s other criminal behaviour:

51.    According to the Sentencing Judge, Mr CRAIG started offending at an early age, selling cannabis at an ice-skating rink when he was 13 years old, albeit I note this offence is not included in the National Criminal History Check dated 18 June 2019. Her Honour also stated that as a young man, Mr CRAIG was part of a gang of 'skinheads' who regularly came into conflict with the 'Rockers'. Nevertheless, he eventually ‘grew out of that lifestyle’.

52.    Mr CRAIG’s criminal record commenced in 1986 when he was 18 years old. Mr CRAIG’s earlier convictions were mostly driving offences, including Drive at dangerous speed, Drive unlicensed, Change lanes to endanger, No insurance, Unregistered vehicle and Drive unregistered mv on a road in 1986, 2000 and 2005, in addition to a Larceny in 1988. For these offences, Mr CRAIG was sentenced to fines and licence disqualification.

53.    On 31 July 2012, Mr CRAIG was convicted of Non-aggravated offence - possess firearm without license (two counts) and related offences, for which he was sentenced to six months imprisonment, suspended on entering a $100 bond for one year.

54.    On 24 August 2012, Mr CRAIG was convicted of Other than programs- contravene term of intervention order (four counts), for which he was placed on good behaviour bond for 12 months and fined $750.

55.    On 30 October 2012, Mr CRAIG was convicted of damage building or motor vehicle, for which he was placed on good behaviour bond for six months and fined $500.

56.    On 30 September 2014, Mr CRAIG was convicted of Drive motor vehicle with methamphetamine in fluid or blood (two counts), Fail to comply with notice to produce vehicle, Fail to stored ammunition separately from firearms and Carry an offensive weapon. For these offences, he received fines, a license disqualification and a good behaviour bond for two years.

57.    I note that Mr CRAIG has lengthy periods of not offending and his offences between 1986 and 2014 were relatively minor compared to his most serious offences, as reflected in the non-custodial sentences imposed. Notwithstanding, I am mindful that Mr CRAIG's driving offences, in particular driving under influence and weapon related offences, have the potential to cause serious physical and psychological harm to members of the community.

58.    I have also considered the cumulative effect of Mr CRAIG's offending, which includes the physical and psychological impact on the Australian community as well as the cost to community resources such as the courts, the police and the corrective services system. I find that when viewed in totality Mr CRAIG's other offences also amount to serious offending.

59.    In light of the above information, I find that Mr CRAIG's child pornography offences are very serious and his other offending in Australia is serious.

11    In the course of considering whether there were contributing factors or mitigating circumstances for the applicant’s offending, the Minister said:

64.    I note that the Judge referred to a psychologist report from Mr Balfour. In Mr Balfour's opinion, Mr CRAIG did have ‘a prurient interest’ in child exploitation material, although he did not identify himself as a paedophile and expressed loathing in relation to them.

65.    The Judge accepted that at the time of offending, Mr CRAIG had an ongoing ice addiction and poor mental health suffering anxiety and depression. Her Honour opined that, while Mr CRAIG's drug addiction may have impaired his judgment and led to some disinhibition in his behaviour, it did not explain his interest of a sexual nature in children. I have taken into account the court’s assessment.

66.    I have had regard to Mr CRAIG's revocation submissions. Mr CRAIG states that he was depressed following his mother's death in 2015 and his father's subsequent estrangement from the family. He resorted to drugs and committed his most serious offences, ‘out of character and in a drug haze’.

67.    I note that when the police searched his house, Mr CRAIG's volunteered the information that he had a sex doll in a wardrobe, next to a bag of children's clothing. It appeared that the sex doll was homemade and dressed in a child's T-shirt. Mr CRAIG told the police that he had not touched the doll for a long time and had left it in the wardrobe. While Her Honour opined that the sex doll was ‘particularly concerning’ given the nature of Mr CRAIG's offences, I adopt Mr Balfour's assessment that Mr CRAIG had ‘not progressed’ in his offending behaviour.

68.    In relation to his other offending, Mr CRAIG submits that other than minor traffic offences, his ‘first crime’ was in 2012 for which he received non-custodial penalty. He advises that he was battling mental health issues at that time due to a relationship breakdown and that he obtained a firearm in an attempt to commit suicide.

12    When dealing with the applicant’s claims of remorse, the Minister noted that, at the time of his apprehension and questioning by the police for these offences, the applicant denied his conduct, which the Minister found to be a matter of concern:

70.    I note with concern that the court observed Mr CRAIG was in denial of his offences. In relation to the iPhone found in his car, Mr CRAIG advised the police that the phone was not his but was found in his car after giving some friends a lift. He decided to keep it and put a SIM card into the phone, added some contacts and put a cover on the phone. He admitted to the police taking pornographic images of himself with the phone but stated that a person named Steve had been hacking his phones for years.

71.    I note that Mr CRAIG stated to the police that while he was confronted by the image of a young child wearing a pink top and blue shorts on the iPhone, he decided to keep the picture so that he could advise the girl or her mother.

72.    Mr CRAIG told the police that he acquired the camera a few years ago but had used it a few times and did not know what was on the camera. He also told the police that his ex­girlfriend and her new partner had been trying to have him arrested and gaoled.

73.    The Judge did not accept Mr CRAIG's claim that his phone had been hacked and the material were put on it that way, stating such explanation was ‘implausible and convenient’, which was a view shared by Mr Balfour. I note Mr Balfour's opinion that Mr CRAIG's denial was ‘his psychological coping mechanism against feelings of remorse, shame and a fear of being ostracised’, which was a cause of concern, although denial amongst sex offenders was ‘commonplace’.

13    Further, although the applicant pleaded guilty to the possession of child pornography offences, his guilty plea was not given until the time of the trial.

14    The Minister further noted that, the sentencing judge had found that the applicant lacked genuine insight into his offending behaviour. The sentencing judge said:

You do not express any real insight in relation to your offending, nor any real insight into the harm that is caused to children when they are forced to engage in conduct such as this … nor do they give me any confidence in relation to your rehabilitation.

15    The Minister shared these concerns:

75.     I note that when asked about the lessons learned from his offending behaviour, Mr CRAIG’s responses to Mr Balfour were 'Don't be so trustworthy. Don't hang around people who are associated with drugs and that sort of behaviour. Abide by the law. I don't use the internet, it has ruined my life’ I share the court's concerns that Mr CRAIG did not admit his offending ‘in a meaningful way’ and his response to Mr Balfour did not show ‘any real insight’ into his offending behaviour. I find that his initial denial, his late guilty plea, as well as his responses all indicate a lack of remorse and insight. I have considered Mr Balfour’s view that Mr CRAIG may require therapy to acquire insight into his offending.

16    The Minister acknowledged the applicant’s representation that his imprisonment had been a “wake-up call” and an “opportunity for him to reset himself for the next phase of his life.” The Minister also accepted that the applicant was “somewhat remorseful” for his actions and noted the applicant’s stated intention to refrain from offending. However, the Minister said:

77.    … I find that his statements continue to demonstrate an attempt to minimise the seriousness of his offending, which throws doubt on his claims to be remorseful and has negative implications for his rehabilitation prospects and future risk of reoffending.

17    With respect to the applicant’s rehabilitation, the Minister accepted the applicant’s representation that he was now entirely abstinent of drugs since his incarceration. The Minister noted a number of other matters advanced by the applicant relevant to his further prospects of re-offending. The Minister said:

84.    While these are positive signs that Mr CRAIG has taken steps and made rehabilitation progress, I note with concerns that there is no evidence of him undertaking any therapeutic programs or courses to address his sexual offending behaviour and causal factors such as his drug habit and underlying mental health issues.

85.    I remain cautious as Mr CRAIG has been in a supervisory environment and free from the temptations of illicit drugs while he has been detained and this will not be the case if he is released into the community. The risk of Mr CRAIG relapsing into drug abuse is a factor which I consider to be important and his ability to refrain from illicit drug use remains untested in the community.

86.    I also note that Mr CRAIG was not a first time offender and that he reoffended after being warned by the court in 2012 when he received a one-year good behaviour bond, which shows a disregard of laws and judicial orders.

18    Having recited a number of factors that indicated that there was a “lower risk” of the applicant committing further offences, the Minister then said:

88.    I have considered Mr CRAIG's submissions that he has strong support from his family and friends. While I take into account that such support will act as a protective factor, I am cognisant that it existed before but it failed to deter him from offending.

89.    Notwithstanding, I find it particularly concerning that Mr CRAIG fails to demonstrate a sufficient level of remorse and insight as discussed above. Given his history of offending while on conditional liberty, I am mindful that his ability to remain abstinent and crime free has not been tested in the community. I find these factors indicative of a risk of reoffending.

90.    Overall, I find that there is a risk, albeit a low risk, that Mr CRAIG will reoffend. Taking into account the nature of his conviction being sexual offences against children, I find that further offending by Mr CRAIG in a similar manner could result in psychological and/or physical harm to vulnerable member or members of the Australian community.

19    When weighing up the various matters the applicant had advanced as constituting another reason why the cancellation decision should be revoked, the Minister said that he had given:

96.    … significant weight to the very serious nature of the crimes committed by Mr CRAIG, that of Possess child pornography (basic offence and aggravated offence), which are of a sexual nature and involved vulnerable members of the community being minor children.

The Grounds of review

The first ground of review

20    There are two grounds of review. The first ground is that the Minister failed to exercise the jurisdiction, or erred in exercising the jurisdiction, conferred by s 501CA(4) of the Act by making findings of fact in respect of which, the applicant says, there was no evidence. The applicant says that these findings were critical to the Minister’s assessment of the risk the applicant posed to the Australian community.

21    There are two aspects to this ground. The first aspect concerns the Minister’s finding at [90] of his reasons (quoted above) that, when taking into account the nature of the applicant’s convictions (sexual offences against children), further offending by the applicant, in a similar manner, could result in psychological and/or physical harm to vulnerable members of the Australian community.

22    The applicant submits that there is no evidence that the child pornography he possessed, for which he had been convicted, involved any vulnerable members of the Australian community, by which I take the applicant to mean there is no evidence that the child pornography he possessed involved children who were then part of the Australian community. The applicant submits that it follows that there is no evidence that, if he reoffended in a similar manner, his conduct could result in harm to vulnerable members of the Australian community.

23    This aspect of the first ground of review appears to be based on a misunderstanding of what the Minister was conveying. At [47] of his reasons, the Minister did not make a finding that was specific as to the identity (in terms of locality) of the children who were the subject of the pornographic images the applicant possessed. It was not necessary for the Minister to do so.

24    At [46] of his reasons, the Minister summarised the material which the applicant possessed. At [47], he referred to the applicant’s offences in this regard as “sexual offences against vulnerable members of the community”. It is tolerably clear that, in referring to “sexual offences against vulnerable members of the community”, the Minister was not confining his observation to vulnerable members of the Australian community. Of course, the images, or some of them, might have been of such members. But here the Minister was using the word “community” in a broad sense to mean a societal grouping, wherever located.

25    The Minister referred to such offences as “repugnant to the Australian community”. In making this finding, the Minister was not saying that such offences were repugnant to the Australian community because (and only because) the pornographic images were of children in the Australian community. The Minister’s point was that the applicant’s offences involved children, and thus a sub-group who were vulnerable. The Minister was saying that such offences—sexual offences involving children—were repugnant to the Australian community.

26    When, at [90] of his reasons, the Minister referred to the risk of the applicant further offending in a similar manner, it is clear that his focus was on psychological and/or physical harm to vulnerable members of the Australian community. Further, the Minister’s focus was on the possibility of such harm—hence the Minister’s use of the modal verb “could”, not “would”. The use of “could” is apposite to describe risk based on the possibility of harm. Here, the Minister’s finding addressed the risk that any future offending by the applicant could involve, although not necessarily involve, images of children who were members of the Australian community.

27    This finding was open to the Minister. In advancing the contrary proposition, the applicant relied on the decision in Dunn v Minister for Immigration and Border Protection [2016] FCA 489 (Dunn). That case also concerned a decision not to revoke a mandatory cancellation decision, in circumstances closely similar to the present case. The applicant in that case, Mr Dunn, had been convicted of child pornography offences for which he received several custodial sentences. In considering whether to revoke the cancellation decision that had been made, the Minister reasoned that if Mr Dunn reoffended in a similar manner, it “could result in further exploitation or cause psychological and/or other harm to young persons within the Australian community”. Indeed, the Minister found that if that risk eventuated, “great harm could flow to a member or members of the Australian community”: Dunn at [12]. The Minister refused to revoke the cancellation decision.

28    The Court (North ACJ) said (at [24]) that the Minister’s finding that Mr Dunn posed a risk of harm to the Australian community was a critical finding in the process of deciding not to revoke the cancellation decision. At [16], his Honour accepted Mr Dunn’s submission that, in arriving at that critical finding, there was no evidence before the Minister that Australian children would be used to make pornographic images and that, consequently, the Minister was not entitled to conclude, as he had, that there was a risk of harm to the Australian community.

29    Thus, North ACJ found (at [24]) that the Minister’s conclusion lacked an evidentiary basis—there was no evidence referred to in the Minister’s reasons that Australian children are or would be used in making child pornography. For that reason, his Honour found that the decision not to revoke the mandatory cancellation decision was vitiated by jurisdictional error.

30    The applicant contends that a similar conclusion should be reached here. He submits that there was no evidentiary basis for the Minister to conclude that, if he (the applicant) were to reoffend, it could result in harm to vulnerable members of the Australian community.

31    It is to be noted that, in Dunn, the Minister referred to the risk of “further exploitation ... to young persons within the Australian community”, thereby indicating a finding, or implying, that such persons had been used in the pornographic images that Mr Dunn had accessed, made available, or possessed. Even so, as in the present case, the Minister’s critical finding was expressed by the modal verb “could”, not “would”.

32    However, at [15] North ACJ said:

The Minister set for himself one of the questions he regarded as relevant to the consideration of whether the cancellation decision should be revoked. That question was whether, if the applicant did reoffend, there would be serious harm to the Australian community. The question went to the heart of the matter to be addressed when the Minister was considering revoking a cancellation decision. The Minister framed the question by limiting it to the risk of harm to the Australian community. In the context of this case the question thus raised was whether Australian children were in danger of being used in the production of such images. The reasons of the Minister concluded that there was such a danger.

(Emphasis added.)

33    From this passage, it can be seen that his Honour attributed to the Minister a finding that was more definite than the finding I would attribute to the Minister in the present case—namely, a finding that, if Mr Dunn reoffended, there would be harm to the Australian community in the form of exploitation of Australian children. Having reached that finding, his Honour’s attention was then directed to whether there was evidence of that critical fact. At [17], his Honour concluded that there was no evidence (referred to in the Minister’s reasons) that Australian children are or would be used in making child pornography. So understood, the decision in Dunn is distinguishable from the present case.

34    I do not see the present case as one involving an absence of evidence. Rather, this case raises, more appropriately, the question of whether the Minister’s finding was legally unreasonable in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. In other words, bearing in mind that the Minister was making an evaluative judgment on a necessarily hypothetical question, was it rational for the Minister to conclude that the applicant’s possible reoffending could involve harm to vulnerable members of the Australian community?

35    I am not persuaded that, in order to reach the conclusion, rationally, that the applicant’s possible reoffending could involve harm to vulnerable members of the Australian community, the Minister needed to have before him evidence that the images possessed by the applicant, for which he was convicted, were of children in the Australian community or that, if he were to reoffend in a similar fashion, the images necessarily would be of children in the Australian community. The future risk, which the Minister addressed, concerned a class of possible victims of child pornography, namely children in the Australian community. In addressing that risk, there was no reason to think that children in the Australian community are not vulnerable, or are less vulnerable than other children, to sexual exploitation of the kind involved in that activity. Indeed, in the absence of evidence that children in the Australian community are in a different position to other children as possible victims of child pornography, why would it be rational to think otherwise?

36    In looking at the matter through that lens, I am satisfied that it was rational for the Minister to reach the finding he did. His finding was not legally unreasonable. I am not persuaded, therefore, that the applicant has established jurisdictional error in respect of this aspect of the first ground of review.

37    The second aspect of the first ground concerns the Minister’s finding at [89] that the applicant’s ability to remain abstinent and crime free had not been tested in the Australian community. In response, the applicant submits that, in reaching his conclusion, the Minister overlooked that the applicant had not used methylamphetamine when he had been at liberty in the community for the period from when the police first found him to be in possession of child pornography (15 April 2014) to when he was convicted and sentenced for those offences (1 December 2017).

38    This fact is said to be derived from the sentencing judge’s remarks, where her Honour appears to have accepted statements made by a psychologist, Mr Balfour, about the applicant’s history of drug-taking, in a report relied on at the sentencing hearing. In turn, Mr Balfour’s information appears to have been obtained from the applicant himself.

39    The applicant submits that, by overlooking this “fact”, on a matter which, he says, was critical to the assessment of risk, the Minister’s finding at [89] was not a mere error of fact but one which affects the Minister’s exercise of jurisdiction.

40    At [65] of his reasons, the Minister referred to the fact that, at the time of his offending in respect of child pornography, the applicant had an ongoing “ice” addiction which, on sentencing, he advanced as having impaired his judgment and as having led to some disinhibition in his behaviour.

41    The applicant advanced his rehabilitation progress and abstinence from illicit drug use— evidenced by his Prison Conduct Report— as a reason why the cancellation decision should be revoked. The Minister accepted, at [79] of his reasons, that the applicant had remained abstinent since his incarceration.

42    It was in this context that, at [85] of his reasons, the Minister said that he remained cautious as to the success of the applicant’s rehabilitation: while in prison, the applicant had been in a supervised environment and free from the temptations of illicit drugs, which would not be the case when the applicant was released into the community.

43    When, in this paragraph of his reasons, the Minister referred to the risk of the applicant relapsing into drug use as an “untested” matter, he was plainly referring to the period after the applicant’s incarceration, where he would once again be exposed to such temptations.

44    At [89] of his reasons, when considering the applicant’s risk of re-offending, the Minister was addressing two matters that were of particular concern to him. Each was a recapitulation of earlier parts of his reasons. The first matter was the Minister’s concern that the applicant had not demonstrated remorse and insight in relation to his offending in relation to the possession of child pornography. The second and separate matter—relevant to the present aspect of the first ground—was the Minister’s concern, expressed in the context of the applicant’s history of offending while on conditional liberty, that the applicant’s ability to remain abstinent and crime free had not been tested in the community.

45    Reasonably read, [89] of the Minister’s reasons is directed to the applicant’s claim to have been rehabilitated following his imprisonment including, in particular, his claim to be now “entirely” abstinent of illicit drug use. This is the proposition which, the Minister said, had not been tested and which gave him concern because of the applicant’s history of reoffending.

46    Although in his amended originating application and in his oral submissions the applicant advanced this aspect of the first ground of review as an “absence of evidence” point, the applicant’s real complaint appears to be one about errant fact-finding by the Minister. In other words, the Minister’s finding that the applicant’s ability to remain abstinent (drug-free) following his imprisonment had not been tested in the community is, according to the applicant, wrong because there was material before the Minister (the sentencing judge’s remarks) that indicated that, before his imprisonment, and while in the community, he had not used drugs (or at least the applicant said that he had not used drugs) for a period of time.

47    I am not persuaded that jurisdictional error has been established. Although the sentencing judge’s remarks were before the Minister, her Honour’s recitation that the applicant had not used drugs since the day he had been arrested in relation to the offences for which he was convicted, was not advanced by the applicant as part of his representations to the Minister.

48    In a letter dated 18 February 2019, which was sent in response to the Minister’s invitation given under s 501CA(3)(b) of the Act, the applicant said that his drug use was attributable to the depression he had suffered following his mother’s death in 2015, when he had also experienced isolation from his father. The applicant said:

... I took refuge in the drugs and lost possession of my regular faculties. Finally, out of character and in a drug haze, I committed the offence that brought me to jail. ... The period of incarceration ordered by the judge is on the lower end of the scale and indicates hope for rehabilitation. I am entirely free and clear of drugs now and have had time to adjust to my mother’s loss in my life. I have used this time as a wake-up call and an opportunity to reset myself for the next phase of my life. My behaviour in prison has been good and I am happy to undergo whatever courses of rehabilitation that I am asked to complete in order to satisfy the authorities that I am ready to be released.

49    In response to an invitation to comment on further information before the Department, which included a National Crime History check, a Prisoner (Conduct) Report, and the sentencing judge’s remarks on sentencing, the applicant sent, on 17 July 2019, a handwritten letter in which he said that he wished to “highlight” certain matters. These matters included the fact while in prison he “had no negative reports on urinalysis”.

50    These matters clearly focused on the applicant’s claimed rehabilitation through his imprisonment, including in relation to the possibility of his future drug use upon release to the community. This is the claim that the Minister was asked to address and did address. This is the claim that was untested in the community.

51    I am not persuaded, therefore, that the applicant has established jurisdictional error in respect of this aspect of the first ground of review.

The second ground of review

52    The second ground of review is that the Minister failed to exercise the jurisdiction, or erred in exercising the jurisdiction, conferred by s 501CA(4) of the Act by failing to consider representations, which the applicant says he made, to the effect that, before the cancellation of his transitional (permanent) visa, he was the holder of an absorbed person visa.

53    The applicant contends that, by holding an absorbed person visa, he was a member of the Australian community. He argues that this was a significant matter which the Minister was required to consider, but did not consider, in arriving at his decision. In advancing this ground of review, the applicant accepts that his representations to the Minister did not include any expressed legal contention that involved him holding an absorbed person visa. He submits, however, that such a claim was implicit and should have been recognised, and addressed, by the Minister.

54    I am not satisfied that the applicant has established this ground of review.

55    First, in his representations to the Minister, the applicant did not raise a claim that he held an absorbed person visa.

56    Secondly, at [129] in Nystrom, Heydon and Crennan JJ held (Gleeson CJ agreeing at [1]) that, when a person holds both a transitional (permanent) visa and an absorbed person visa, the decision-maker is not required to take into account the nature of the absorbed person visa when cancelling a transitional (permanent) visa under s 501(2) of the Act. This is because there is no consideration relevant to the cancellation of an absorbed person visa that is not also relevant to, and considered when, cancelling the transitional (permanent) visa.

57    This conclusion has been applied analogously to cancellation decisions under s 501BA of the Act: Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR1 at [23] – [24]. I see no reason why this conclusion does not also apply, analogously, to decisions required to be made under s 501CA of the Act.

58    Thirdly, there is no doubt that the Minister considered, in detail, the strength, nature, and duration of the applicant’s ties to Australia, as demonstrated by [18] – [34] of his reasons. At [34] of his reasons, the Minister said:

34.     In light of the above circumstances, I consider that Mr CRAIG has established significant ties to Australia, through his lengthy residence of more than five decades, his family, education, employment, community and social activities. I find that Mr CRAIG had made a positive contribution through his employment activities for almost three decades to the Australian community. I have taken this into account and also recognise the effect of non-revocation for his family members and friends in Australia.

59    Here, the substance of the applicant’s membership of the Australian community was fully advanced in the way in which the applicant chose to advance it. It is not suggested that the Minister did not have regard to any particular factual proposition which the applicant, and his family and friends who made supporting representations, advanced in that regard for the Minister’s consideration. Thus, the Minister dealt with, exhaustively, the facts relevant to the applicant’s membership of the Australian community.

Disposition

60    For these reasons, the application for judicial review must be dismissed. The applicant is to pay the Minister’s costs.

61    I wish to acknowledge the helpful assistance provided to the Court by counsel appearing on behalf of the applicant on a pro bono basis.

Associate:

Dated:    30 April 2021