Federal Court of Australia

DAJ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1099

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to the Respondent quashing his decision made on 4 February 2021 to cancel the Applicant’s Class VE, Subclass 176 Skilled-Sponsored visa;

2.    The matter be remitted to the Respondent for determination according to law and in accordance with the reasons herein;

3.    The Respondent pay the Applicant’s cost of the application 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

SC DERRINGTON J:

Introduction

1    On 4 February 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a Decision under s 501(2) of the Migration Act 1958 (Cth) (Migration Act) to cancel the Applicant’s Class VE, Subclass 176 Skilled-Sponsored visa. It is not in dispute that the Applicant did not pass the character test in s 501(2) of the Migration Act, because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more).

2    Pursuant to s 476A of the Migration Act, the Applicant now seeks judicial review of the Decision on the sole ground that the Minister failed to give proper and genuine consideration to the exercise of his power under s 501(2).

3    By his Originating Application, filed on 5 March 2021, the Applicant has particularised his claim for relief as follows:

a.    In the weighing of the primary considerations, the Respondent found that the best interest of the child were of sufficient importance to warrant the exercise of the discretion not to cancel the Applicant’s visa. That specific primary consideration was outweighed by the Respondent who made findings in respect of general primary considerations regarding protection of the Australian community and Community expectations. The weighing of primary considerations will depend upon the relevant facts and circumstances and the weighing of a specific primary consideration in favour of the Applicant (the best interests of an Australian citizen child) cannot be subsumed by general and non-specific considerations said to underpin the exercise of this power.

b.    The Respondent failed to give any weight to the fact that the Applicant had been at his liberty after his charging and sentencing and that there was no evidence of any threat to the safety of other persons in the Community (Protection of the Australian Community).

c.    The Respondent, in assessing general primary considerations of the Protection of the Australian community and Expectations of the Australian community failed to give proper and genuine consideration to the risk of similar conduct by the Applicant and whether such risk was ‘unacceptable’ having regard to the specific facts of the offending behaviour and the expert evidence and ongoing assistance the Applicant was receiving in the community both prior to and after sentence.

4    For the reasons that follow, the application should be allowed and the matter remitted to the Minister for determination according to law.

Legislative provisions

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

(2) The Minister may cancel a visa that has been granted to a person if:

(a)     the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

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

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

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

…

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

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

Background

7    The Applicant is a citizen of the Republic of South Africa who has lived in Australia since 17 August 2006 under the authority of his Skilled-Sponsored visa.

8    The Applicant has been married to his current wife since 5 December 2012. The Applicant and his wife have four children between them: two minor children (daughters) of the marriage who live with them; an adult child from his wife’s previous relationship; and a minor child (a son) from the Applicant’ first marriage, who lives with his mother. The Applicant has regular contact with his son pursuant to a parenting order of the Magistrates Court in Perth made on 24 October 2019. The three minor children are Australian citizens.

9    On 24 May 2016, the Applicant was convicted in the District Court of Western Australia of possessing child exploitation material for which he was fined $3000 and sentenced to 14 months imprisonment, conditionally suspended for 18 months.

10    On 9 September 2020, the Department of Home Affairs sent the Applicant a Notice of Intention to consider cancellation of the visa under s 501(2) of the Migration Act which invited the Applicant to provide reasons why the visa should not be cancelled.

11    On 7 October 2020, the Applicant responded to that Notice. He acknowledged his criminal conduct but asked that the Minister exercise his discretion not to cancel the visa on the basis of: the fiscal dependency of his wife and three minor citizen-children; his inability to afford to purchase the children tickets to visit him in South Africa and the resulting impact on the children of their separation; and his personal safety in South Africa.

12    On 4 February 2021, the Minister decided to cancel the Applicant’ visa. The Minister’s reasons record:

79.    I reasonably suspect that [the APPLICANT] does not pass the character test and he has not satisfied me that he passes the character test.

80.    In considering whether or not to cancel [the APPLICANT’s] visa, I gave primary consideration to the best interests of [the APPLICANT’s] minor children [X, Y and Z], and found that their best interests would be served by not cancelling the visa.

81.    [The APPLICANT] has committed a very serious crime, that of Possessing Child Exploitation Material, which involved vulnerable members of the community, that being minors and [the APPLICANT] and non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

82.    I find that the Australian community could be exposed to significant harm should [the APPLICANT] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the APPLICANT]. The Australian community should not tolerate any further risk of harm.

83.    I found the above consideration outweighed the countervailing considerations in [the APPLICANT’s] case, including the best interests of the child treated as a primary consideration, his claims that he will suffer hardship and harm if returned to South Africa and the other impediments he will face on return and impact on family members. I have also considered the length of time [the APPLICANT] has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members.

84.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa.

85.    I find that [the APPLICANT] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations referred to above.

86.    Therefore, I have decided to exercise my discretion to cancel [the APPLICANT’s] Class VE Subclass 176 Skilled-Sponsored visa under s 501(2) of the Act.

Relevant legal principles

13    The principles relevant to determining whether or not a decision-maker has given active intellectual consideration to a factor relevant to an administrative decision are well settled.

14    The requirement to apply an active intellectual process to weighing the factors that bear upon a decision arises as a necessary incident of the Minister’s task: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 495-496.

15    As a matter of procedural fairness, a material submission or representation advanced to the Minister cannot be ignored. Further, there has to be an active intellectual engagement with the substance of the reasons advanced as to why the visa should not be cancelled: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [30]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) FCR 352 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]-[36]; and XFCS v Minister for Home Affairs [2020] FCAFC 140.

16    In XFCS, at [22], the Full Court drew attention to the context in which a court must grapple with the question of whether or not a decision-maker engaged in active intellectual consideration of the issue under review:

The epithet “active intellectual engagement” must be understood in its proper context of describing the nature and quality of consideration that will meet the statutory requirement for a lawful decision in the particular case rather than involving an evaluation by the Court on judicial review of the merit of the decision, the latter being a matter only for the administrative decision-maker: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [47]-[48] (Griffiths, White and Bromwich JJ), the Full Court noted that the question whether the decision-maker engaged in an active intellectual process requires the Court to conduct an evaluative judgment taking into account all the relevant facts and circumstances of each case. Further, such a finding will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof.

17    As Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], (Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

Particular (a): failure to give active intellectual consideration to the best interest of the applicant’s children

18    The Applicant contends that the Minister committed jurisdictional error by failing to accord appropriate weight to the best interests of his children as a primary consideration and in concluding that the best interests of the children were outweighed by the other relevant factors in the case.

19    In so far as this contention relates to the weight accorded to those interests, it is not a valid ground of review. The ‘weighing of various pieces of evidence’ is a matter for the decision-maker, not the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [44].

20    To the extent that the contention relates to an assertion that the Minister’s reasons do not contain any indication that the Minister engaged in an active intellectual process with the best interests of the Applicant’s children as a primary consideration, it is necessary to examine the matters that the Applicant put to the Minister as to why his visa should not be cancelled.

21    It should be observed that although the Minister’s discretionary power under s 501(2) is not conditioned by a requirement to have regard to any mandatory factors (Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [72]), the Minister in fact gave primary consideration to the best interests of the Applicant’s minor children (Minister’s reasons at [80]). In so doing, that consideration required ‘active intellectual consideration’ by the Minister.

Representations made by the Applicant

22    As to the representations that were made by the Applicant in his letter of 7 October 2020, in response to the invitation by the Department to do so, the Applicant wrote that he and his wife

have 2 beautiful daughters who live with us full-time…and I also have a son from a previous marriage…who I see on a very regular bases (4 nights per fortnight plus some addition time twice a week...). Should I have to leave Australia I would lose all contact with my son…as his mother would not let him travel internationally. I have a very close relationship with [my son] and not being able to see me would be absolutely devastating for him.

(Emphasis added)

23    That letter also said,

Our family loves Australia and would like to remain here indefinitely…If, however, the department decides to cancel my visa, we would prefer to leave the country voluntarily. This might give us time to find a place to live and to sell all our possessions here in Australia. We do not want to be a burden on the Australian community.

24    In his ‘Personal Circumstances Form’, also dated 7 October 2020, and attached to the letter, the Applicant provided some additional information. He indicated that he supported his son with his homework as ‘he needs additional help with mathematics and reading’. He wrote, ‘[my son] loves me and has no other father figure in his life’.

25    As to his daughters, he wrote, ‘They both love me and we have a very close relationship. They love to play with their dad and I am involved in most aspects of their lives … [My children] would be devastated to loose the father they love. [My daughters] would lose their home and their whole world would be shattered’. The Applicant said further that, ‘My wife is unemployed and we have two young children, I am the only financial and emotional support they have’.

26    Also attached to the letter were orders made by the Magistrates Court in Perth under the provisions of the Family Law Act 1975 (Cth), which included an order permitting the Applicant’s former wife to take their son to South Africa for a limited period of time, and subject to certain conditions, in September-October of 2020.

The consideration of the children by the Minister

27    In relation to the children, the Minister’s reasons record that:

43.    [The APPLICANT] states that [the children] would be ‘devastated to lose the father they love’ and that [his wife and daughter] would lose their home and ‘their whole world would be shattered’ should his visa be cancelled and he be removed from Australia.

44.    [The APPLICANT] resides with his wife…and their two daughters… He states that he has a close relationship with his daughters and he is involved in most aspects of their lives.

45.    [The APPLICANT] states that he also has a close relationship with [his son], from his first marriage. [His son] visits his father for four nights a fortnight (after school until 7:00pm) and two additional days (Sunday from 8:30am to 5:00pm) during the school term; and for longer periods during the school holidays (including overnight stays) as per the court order. [The APPLICANT] regularly helps him with his homework, especially his reading and maths as [his son] requires extra assistance. [The APPLICANT] states that [his son] has no other father figure in his life.

46.    I have considered that [the APPLICANT’s] claims regarding his relationship with his children are supported by statements made by [his wife].

47.    I note that [the APPLICANT’s] former wife … has not provided any statements regarding [the APPLICANT’s] relationship with his children.

    …

49.    …Notwithstanding the serious nature of his offending, I find that the best interests of [the APPLICANT’s] children would be served by enabling them the opportunity to develop the relationship and to spend time with their father in the future.

50.    I have serious concerns about the nature of the offending that involved [the APPLICANT] being in possession of images of young females. I consider this would impact the best interests of [the APPLICANT’s] minor children especially his two young daughters.

51.    I have treated the best interests of any affected children who are less than 18 years of age in Australia as a primary consideration and have concluded that it is in the best interests of [the children] not to cancel [the APPLICANT’s] visa. However, I consider these best interests to be limited for the reasons outlined above.

28    The Applicant contends that where a significant and discrete matter is raised in response to the Minister’s invitation to provide reasons as to why a visa should not be cancelled, the failure to engage with that specific matter amounts to jurisdictional error.

29    The specific claim that the Minister is said to have failed to address is that the result of the visa cancellation would be a permanent severing of contact between the Applicant and his son. The Applicant contends that this is the fatal error that vitiates the cancellation decision.

30    The Minister found positively that it would be in the best interests of all three children collectively not to cancel the Applicant’s visa. However, despite the Minister having those matters in mind, he was cognisant of the significant harm which could be inflicted on the Australian community if the Applicant’s visa was not cancelled. In particular, the Minister was concerned that the nature of the Applicant’s offending, which involved being in possession of images of young females, meant that the factors which had been identified as falling in the Applicant’s favour did not outweigh the other strong countervailing considerations. The Minster’s reasons failed to engage in an active intellectual consideration of the human consequences, for either the Applicant or his son, of his decision. (Hands at [3]).

Factors relevant to the Applicant’s son

31    The extract of the Minister’s reasons set out above shows he was cognisant of the parenting orders that had been made in relation to the Applicant’s son. To the extent that those orders permitted the Applicant’s former wife to remove the Applicant’s son from Australia for the purposes of an overseas holiday, no inference can be drawn by the Court, contrary to the Applicant’s claim that the child would not be permitted to travel internationally should the Applicant be residing overseas. Had the Minister drawn such an inference, that would not have strengthened the Applicant’s representations to remain in Australia. Indeed, the relative hardship faced by the Applicant in being required to leave Australia would have been less. The Minister, however, made no finding as to whether the Applicant’s son would be permitted to travel internationally if the Applicant’s visa was cancelled, and if not, what the impact on the Applicant would be.

32    The Minister’s failure to consider the son’s capacity to travel to visit the Applicant is particularly stark considering the Minister’s apparent acknowledgment that the Applicant ‘would prefer to leave the country voluntarily’ with his wife and daughters – a factor taken into account when considering the hardship the family was likely to face in South Africa ‘should they choose to relocate if his visa is cancelled’ (Minister’s reasons at [67], [70]).

33    The Minister’s reasons also make no finding as to the relative impact as between the Applicant’s son and the Applicant’s two daughters. Plainly, if the Applicant’s specific claim that the son will not be allowed to visit South Africa is made-out, the consequences for the Applicant’s son would be qualitatively very different from the consequences for the Applicant’s daughters who may move to South Africa with the Applicant. To the extent that the Minister’s reasons attempt to differentiate between the relative impact on each of the children as individuals, the Minister records that the nature of the Applicant’s offending ‘would impact the best interests of [the Applicant’s] minor children especially his two young daughters’(emphasis added) (Minister’s reasons at [50]).

34    The Minister’s reasons do not otherwise draw any meaningful distinction between the consequences that would be visited upon the Applicant’s son, as compared with his two daughters.

Conclusion in relation to consideration of the Applicant’s son

35    The finding that the Minister has failed to engage in an active intellectual consideration of the human consequences of a decision is not to be lightly be made and must be supported by clear evidence from the Applicant, who bears the burden of proof (XFCS at [22]). For the reasons given, the Applicant has established that the Minister failed to engage in an active intellectual consideration of the best interests of the Applicant or his son.

36    Having made out particular (a), the application must necessarily be allowed.

Particulars (b) and (c): failure to give any weight to the Applicant’s liberty after charging and no evidence of other offending and failing to give proper consideration to whether risk of similar conduct was ‘unacceptable’

37    The Applicant contended that Minister’s conclusion in relation to the ‘risk of harm’ do not go beyond a bare, formulaic recital that he had ‘considered that [the Applicant] has remained in the community since and has not reoffended or otherwise come to the attention of authorities’ (Minister’s reasons at [39]). Similarly, the Applicant contends that the Minister did not give genuine and proper consideration to the risk of similar conduct by the Applicant and whether any risk was ‘unacceptable’ in finding:

52.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa of such a person. [The APPLICANT] has breached this trust as he has been found guilty of possessing CEM.

53.    Given the serious nature of this offence, I conclude that the Australian community would expect that [the APPLICANT] should not hold a visa.

38    Given the conclusion I have reached in relation to particular (a) of the Applicant’s sole ground of appeal, it is unnecessary to consider the remaining two particulars in detail. Nevertheless, as the Minister submits, the Applicant’s contentions unfairly read the Minister’s reasons in which he:

•    noted that the Applicant had no other criminal record, at [17]

•    has taken into account the Applicant’s undertaking to reform and address his behaviour, at [22]

•    referred to the pre-sentence report and a psychological report before the Magistrate, who stated ‘that whatever exactly lies behind it, you are reluctant to admit perhaps even to yourself the nature of what lay behind this offending’, at [23]

•    noted that the psychological testing indicated the Applicant did not have any major mental health concerns nor was the testing in regard to sexual behaviours indicative of any particularly extreme or concerning attitudes, at [25]

•    noted that the Magistrate stated it would be difficult for the Applicant to embark on treatment given his lack of candour, particularly due to the fact that he was not honest with police when first interviewed, but accepted the Applicant was ‘not a high risk of reoffending’, at [28]

•    noted that the psychologist had reported that the Applicant would be considered a low-risk of sex offending against children, albeit the level of risk is a little higher than in the general community but noted the Applicant ‘has attended a rather extensive sex offender course and has undergone personal counselling, both of which I would expect to continue to lower risk and allow him to deal with emotions in a more appropriate fashion’, at [33]

•    accepted that the Applicant had undertaken a sex offenders program as part of his rehabilitation and accepted that he was remorseful for his actions. He also noted that the Applicant had protective factors in place by way of his family and community support, noting however that they were also in place when the offending occurred, at [37]

•    accepted that the Applicant’s registration on a Sex Offender Register and being subject to reporting requirements will serve as a protective factor, at [38].

39    I am not persuaded that the conclusions of the Minister, at [39] and [52]-[53], can be impugned on the basis that the Minister failed to give proper and genuine consideration to the risk of harm of the Applicant’s continued presence in Australia, or to the expectations of the Australian community.

Disposition

40    For the reasons set out above, the application should be allowed with costs. It follows that orders should be made setting aside the decision of the Minister to cancel the Applicant’s Skilled-Sponsored visa and remitting the matter to the Minister for re-determination in accordance with law.

Associate:

Dated:    10 September 2021