Federal Court of Australia

Kamboj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1069

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

3.    Any application by the first respondent with respect to the quantum of costs is to be made within 7 days of the date of these Orders.

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

REASONS FOR JUDGMENT

GOODMAN J

Introduction

1    The appellant is a citizen of India. On 27 July 2018, he was granted a temporary student visa.

2    On 31 July 2019, the appellant was convicted of three offences in the District Court of New South Wales. The first two offences were “stalk/intimidate intend fear physical etc harm (personal)”, which resulted in intensive correction orders. The third offence was “possess child abuse material”, which resulted in a community correction order.

3    On 13 January 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs gave the appellant notice of the Minister’s intention to consider the cancellation of the appellant’s visa, under s 116 of the Migration Act 1958 (Cth) and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth), on the ground that he had been convicted of the above-mentioned offences. The appellant was invited to comment on the proposed ground for cancellation and to provide reasons as to why his visa should not be cancelled. The appellant did not respond to that request.

4    On 3 February 2020, the delegate made a decision to cancel the appellant’s visa. On 8 February 2020, the appellant filed in the Administrative Appeals Tribunal an application for review of the delegate’s decision. On 18 January 2021, the Tribunal heard the appellant’s application for review and on 20 January 2021, the Tribunal affirmed the delegate’s decision and published its Reasons for doing so.

5    The appellant sought review of the Tribunal’s decision from the (then) Federal Circuit Court of Australia. On 15 September 2021, the primary judge (in what was by then the Federal Circuit and Family Court of Australia) heard and dismissed the appellant’s application. The appellant appeals to this Court from the decision of the primary judge.

Relevant statutory provisions

6    Section 116(1)(g) of the Act provided, in so far is presently relevant:

116    Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(g)    a prescribed ground for cancelling a visa applies to the holder.

…

(2)      The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)      If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

7    A “prescribed” ground means a ground prescribed by the Regulations: s 5 of the Act. Regulation 2.43 of the Regulations provided, in so far is presently relevant:

2.43 Grounds for cancellation of visa (Act, s116)

(1)    For the purposes of paragraph 116(1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

...

(oa)    in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

8    Thus, s 116 provides a discretion to cancel a visa. That discretion is enlivened if the Minister is satisfied of the existence of one (or more) of the criteria set out in s 116(1) and – as in the present case – sub-sections 116(2) and (3) are not applicable.

Tribunal’s decision

9    The Tribunal was satisfied of the existence of the prescribed ground set out in reg 2.43(1)(oa), on the basis that the appellant had been convicted of offences against a law of New South Wales. Thus, the discretion in s 116 of the Act to cancel the appellant’s visa was enlivened.

10    The Tribunal decided to exercise that discretion by cancelling the appellant’s visa. Its reasons for doing so may be summarised as follows.

11    The Tribunal noted that there were no matters specified under the Act or Regulations that were mandatory relevant considerations in the exercise of the discretion. The Tribunal indicated that it had had regard to the circumstances of the case and matters raised by the appellant as well as matters contained in the Department’s Procedures Advice Manual, including:

…the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

12    The Tribunal then described in some detail the matters contained in the New South Wales Police Facts Sheet relevant to the appellant’s convictions:

16.    The facts sheet states that the applicant is the accused in the matter, and the named victim was 12 years old.

17.    Sometime in September 2018, the victim was walking to Flemington railway station to catch a train to school when the applicant approached her from behind, tapped her on the back, and engaged her in conversation. The applicant outlined his personal information, and asked the victim’s age, to which she responded that she was 12. The applicant asked the victim about what school she attends, where she lives, and how she gets to school. The applicant took out his mobile phone and asked the victim for her number. The victim felt pressured and put her number into the applicant’s phone. The applicant and victim then parted ways.

18.    The victim contacted her father … to inform him what had happened. The applicant attempted to call the victim, and she did not answer. After school, the victim checked her phone and noticed several missed calls from the applicant. When the victim arrived home, she saw three text messages from the applicant. The victim did not reply and reported it to her father, who sent the applicant a message telling him to stop contacting the victim.

19.    Five or six weeks later, the victim was walking home from school when she saw the applicant walking with five or six other people. The applicant stared at the victim until she passed him; when the victim looked back, the applicant was still watching her, and then waved at her.

20.    On 30 November 2018, the victim was dropped off at Flemington railway station around 6:45am. The victim sat down at a bench to wait for a train. At 6:51am, the applicant arrived and walked in the opposite direction from the victim, and then turned and looked at the victim, before turning away again. The applicant did this several times. The applicant approached the victim and sat down next to her, asking if the victim recognised him. The victim felt fearful of her safety and confirmed that she knew the applicant. The applicant began asking what time the victim returned from school and if she wanted to be friends, noting that she returns from school around 4pm every day.

21.    The victim did not answer and said that her parents did not want her to talk to the applicant. The applicant told the victim that her parents do not have to know, and said that they can still be friends. The applicant asked the victim if she would like to meet with him in a park after school, which the victim declined. The applicant asked why in a different tone which frightened the victim, and she boarded the next train and reported the incident to her parents. The victim and her father met at Flemington station that afternoon and reported the incident to the station master, who notified the police. The victim and her father attended Auburn police station and provided a statement regarding the three incidents.

22.    The police obtained CCTV footage and checked the applicant’s mobile number to confirm his identity. Around 9pm on 14 December 2018, police officers attended the applicant’s address, where they arrested the applicant and questioned him about the allegation. The applicant stated that the victim’s father had texted him and told him not to speak to the victim, and he had said sorry. The applicant said that he believed the victim was 11 or 12 years old. The police searched the applicant and found a mobile phone, which they checked. The police observed pornographic material on the applicant’s phone, including several videos of child abuse material.

23.    The applicant was taken to Auburn police station and interviewed. The applicant said that he had seen the victim two to three times before approaching her in September 2018, and that he knew she was around 12 years old. The applicant said that he had called the victim so that she could have his number, and called again as she did not answer. The applicant admitted that he had approached the victim on 30 November 2018 and asked her to meet in a park, and said that the child abuse material on his phone was sent by friends via Whatsapp, that he did not know why he saved it, and that the children in the video are 12 to 14 years old. The applicant stated that he was aware of the offences, that he knew it was wrong, that he knows it is not allowed in India or Australia, and that he loves Australia.

13    After doing so, the Tribunal stated at paragraph [24] of its Reasons:

In the hearing, the Tribunal put to the applicant adverse information pursuant to the procedural requirements of s.359AA of the Act. The Tribunal put to the applicant that the factual underpinnings as set out in the NSW Police Facts Sheet together with the convictions themselves indicate that there were ongoing attempts by the applicant to solicit the attentions of a 12-year-old girl despite being warned by her father to stop. When police arrested the applicant child sex abuse material was found on the applicant’s phone. The information is relevant because the factual circumstances and convictions demonstrate inappropriate behaviour towards a minor which, combined with the presence of child sexual abuse material on his phone, could demonstrate a sexual interest in minors. The facts and the convictions could cause the Tribunal to conclude that the applicant is not a desirable person to remain in Australia on a student visa, or otherwise including because he is of potential ongoing risk to minors.

14    The Tribunal then considered, at paragraph [26] of its Reasons, the information provided to the Tribunal by the appellant, including: a letter from the appellant titled “Sincere Apology”; a psychologist’s report; letters of support for the appellant; and an affidavit from the appellant’s parents. The Tribunal noted, inter alia, statements made by the appellant to the psychologist that he did not have a sexual interest in minors; and the psychologist’s view that the appellant’s offending had been influenced by the appellant’s mental health conditions, including that he had the psychological maturity of a 12-14 year old. The Tribunal also noted submissions, based upon the psychologist’s report, as to mitigating factors.

15    The Tribunal recorded, at paragraph [31] of its Reasons, the appellant’s submission at the hearing that he did not have a sexual interest in minors and that he had approached the child the subject of the first two offences because he wanted to talk to her as a friend and that he now realises that it was a mistake to do so.

16    The Tribunal then noted, at paragraph [32] of its Reasons, that the appellant had indicated, in response to a question from the Tribunal, that he had not received ongoing psychological support that had been recommended.

17    The Tribunal considered the reasons for the appellant’s cessation of his studies and declined to draw an inference adverse to the appellant because of this cessation. The Tribunal also concluded that the appellant would suffer hardship if his visa were to be cancelled: see Reasons [35] to [46].

18    The Tribunal then noted that it considered a relevant discretionary factor in this matter to be the ongoing risk that the appellant may pose to the Australian community, particularly underage girls. At paragraphs [47] to [49] of its Reasons, the Tribunal stated:

47.    The Tribunal considers that a relevant discretionary factor in this matter is the ongoing risk of the applicant to the Australian community, particularly underage girls. The Tribunal put to the applicant that the fact that the psychologist had determined in May 2019 that the applicant had the mental age of a 14-year-old in the context of the offences could create concerns of an ongoing risk for the applicant in the Australian community notwithstanding that two years have passed. In response to this issue in the hearing the applicant indicated remorse for what he has done. He cannot prove that he will not do it again but his intention is to focus on studies and that he is now more mature.

48.    The psychologist’s report indicates the opinion that ongoing psychological treatment for the applicant together with his level of guilt, shame and remorse will mean that the likelihood of reoffending will be minimal, in the psychologist’s opinion. As indicated, the applicant indicated in the hearing that he has not sought ongoing psychological support as recommended. It is submitted that this is substituted by advice obtained from family and friends.

49.    The Tribunal is not satisfied that this is an appropriate substitute for professional mental health care. It is adverse to the applicant including in terms of him being an ongoing risk that he did not take up the psychologist’s recommendation that he seek ongoing psychological help to mitigate that risk.

19    The Tribunal then noted, at paragraphs [50] to [52] of its Reasons, submissions on behalf of the appellant that he is not a risk to the Australian community because the sentencing Court considered it appropriate to commute his sentence to a community correction order and because of the support he has from various individuals in the community.

20    At paragraphs [53] and [54] of its Reasons, the Tribunal stated:

53.    Considering all of the evidence relating to an ongoing risk from the applicant to minors, the Tribunal accepts contrition on behalf of the applicant and that he has indicated that he is not a future risk. The Tribunal is concerned at the fact at the time of the offences the applicant was determined as having a mental age of only 14 years old which could suggest ongoing immaturity on the part of the applicant notwithstanding that a period of time has now passed. The Tribunal is concerned that the applicant did not take up the psychologist’s suggestion to seek ongoing counselling support, which was a key recommendation made in terms of mitigating the risk.

54.    While the Tribunal does not consider that the risk of the applicant reoffending is a high risk, the Tribunal nevertheless considers that there is some risk of reoffending, in light of all of the circumstances. The fact of there remaining at least some risk of the applicant reoffending is not insignificantly adverse in terms of discretionary factors.

21    The Tribunal then noted a submission on behalf of the appellant that the convictions did not amount to a substantial criminal record and fell below the standard set for mandatory cancellation and that in those circumstances his visa should not be cancelled and a formal warning would be sufficient. After noting that the appellant did not fear persecution or harm if he were to be returned to India, the Tribunal set out its conclusions, as follows, at paragraphs [57] to [62] of its Reasons:

57.    The Tribunal weighs discretionary factors. Key factors follow.

58.    The circumstances leading to the ground of cancellation being made out, the underpinning facts leading to the convictions demonstrate, in the Tribunal’s view, conduct which undermine to a degree the applicant’s entitlement to remain in Australia on a student visa, notwithstanding diagnosed mental health conditions. Notwithstanding that some time has passed to facilitate increased maturity for the applicant, and acknowledging remorse and contrition on behalf of the applicant, the Tribunal nevertheless considers that there is some ongoing risk to the community in Australia posed by the applicant. These matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

59.    The Tribunal accepts a degree of remorse and contrition on behalf of the applicant, and that mental health conditions were at least some of the causes of the circumstances leading to the offences. The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled. The Tribunal accepts that the applicant has individuals who have attested to his character and are in a position to provide support in Australia. The Tribunal accepts that the applicant has disclosed the offences to his family in India and that they are providing support. The Tribunal accepts that the offence does not amount to a substantial criminal record and that the conviction did not result in a custodial sentence. These matters weigh against exercising the discretion to cancel the visa.

60.    The Tribunal does not draw any adverse inference from the applicant’s study history in Australia, or the breach of visa conditions.

61.    However, balancing these and other enumerated discretionary factors, the Tribunal determines that matters in favour of exercising the discretion to cancel the visa outweigh matters against exercising the discretion.

62.    Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

the decision of the primary judge

22    Before the primary judge, the appellant pursued two grounds of review. The primary judge found that no jurisdictional error had been made out for either ground. Only one ground is the subject of this appeal, namely that the Tribunal’s decision is affected by legal unreasonableness.

23    The primary judge’s reasoning to the conclusion that the Tribunal’s decision was not affected by legal unreasonableness is reproduced below:

55     Mr Berg’s (sic) submits that the decision is affected by legal unreasonableness. It is contended that the Tribunal, in its analysis of risk, had failed to engage in an analysis of the risk and that it failed to identify a probative basis for that analysis of risk. Those arguments are without substance. It is apparent that the Tribunal carefully addressed the risk of re-offending and found that there is not a high risk of re-offending. However, the Tribunal held that there is some risk of re-offending in light of all of the circumstances. That finding of some risk of re-offending in all of the circumstances includes the Tribunal’s reasoning referring to the psychologist’s report that there was some risk, and the steps that the applicant needed to take to mitigate the risk, which the applicant had not taken.

56     There is a probative basis for the Tribunal’s finding that there is some risk in light of the psychologist’s evidence and in those circumstances it cannot be said that the finding lacks an evident and intelligible justification. Nor can it be said that this was a finding to which no reasonable decision maker could so decide. It was not just logical and rational, but it was reasonable, on the material before the Tribunal, to find that there was some risk of the applicant re-offending. That is because the Tribunal had identified the psychologist’s report in relation to the identification of the risk of re-offending being minimal, and the steps that could be taken to further address that risk, which the applicant had not taken. In that regard, the Tribunal’s finding that there was some risk of the applicant re-offending was not speculative or capricious. It was a finding based on the evidence which the Tribunal had identified and was properly open to the Tribunal.

57     Mr Berg also contended that the Tribunal had deflected itself from assessing the risk of re-offending because of the reference in the procedural fairness analysis to the convictions and factual circumstances, possibly supporting that the applicant had a sexual interest in minors. That was a evident and obvious inference from the material, in which the applicant had sexual child abuse material on his mobile phone, which was the subject of the third conviction, as well as having on his mobile pornographic material, as well as the applicant’s knowledge of that child abuse material relating to underage children, and further the applicant’s interest in the child victim in the present case. The inference drawn was open to the Tribunal and the Tribunal properly performed its statutory review obligation in determining the correct and preferable decision.

58     Mr Berg submitted that, no matter how contrary to moral standards or depraved, having a sexual interest in children was not of itself a criminal offence. It was contended that the Tribunal had then evaluated a risk of the applicant having sexual interest in children rather than the risk of re-offending by committing another criminal offence.

59     A fair reading of the Tribunal’s reasons does (sic) support that submission. Rather, the Tribunal was making the obvious nexus that, if a person has a sexual interest in minors, it impacts on the risk of re-offending by committing another criminal offence. On a fair reading, the Tribunal correctly identified a risk to the Australian community that it evaluated in respect of the applicant’s risk of re-offending. It was not a finding of there being some risk of the applicant having a sexual interest in children.

60     The Court does not accept that there was any legal unreasonableness in the adverse findings by the Tribunal, as contended on behalf of the applicant. The Court finds that no jurisdictional error as alleged by Ground 2, and that no jurisdictional error as summarised in the issues identified above, is made out.

the appeal to this court

24    The task on a judicial review application is to determine, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [27] (Beach, Thawley and Cheeseman JJ).

25    A decision may be made outside of the authority conferred by the statute if it is affected by legal unreasonableness.

26    The appellant’s grounds of appeal to this Court are as follows:

1.    The Tribunal considered the risk to the Australian community from the appellant, and made that consideration central to its reasoning.

2.    There are 2 kinds of risk from the appellant which the Tribunals (sic) identifies; the risk of a sexual interest in minors; and the risk of reoffending.

3.    The Tribunal did not give an evident and intelligible basis for the risk of a sexual interest in minors. His Honour Judge Street should have found that the Tribunal needed to show the basis for the risk of that kind, and that the basis be evidence and intelligible.

4.    His Honour erred by not making the finding stated in 3.

27    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] Allsop CJ said the following concerning the review of a decision for legal unreasonableness:

The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

28    There are two essential premises in the appellant’s argument that the Tribunal’s decision was legally unreasonable: first, that the Tribunal made a finding that there was a risk that the appellant had a sexual interest in minors; and secondly, that the Tribunal’s Reasons do not disclose an evident and intelligible basis for that finding.

29    I am not satisfied that the Tribunal made a finding that the appellant had a sexual interest in minors. There is no express finding to that effect. Nor is it implicit. The Reasons record that:

(1)     the Tribunal raised the proposition that the appellant has a sexual interest in minor as a potential finding (at [24]);

(2)     the Tribunal then noted:

(a)    that the psychologist’s report included that “at various points in the interview it is indicated that the [appellant] does not have a sexual interest in minors” and recorded the psychologist’s view that “ the [appellant] was functioning in a regressed emotional psychological state at the time of the offence, and was seeking to connect with younger persons in keeping with his lack of emotional maturity and the applicant is estimated to have been functioning no better than a 12-14-year old” ([at [26], second bullet point); and

(b)    the [appellant’s] indication at the hearing that: he did not have a sexual interest in minors; he approached the young female because he missed contact with his young relatives in India; he had no desire to hurt her; he wanted to talk to her as a friend; and he knows now that it was a mistake to do so (at [31]).

30    The Tribunal’s conclusion, as expressed at Reasons [61], was that the key factors (see Reasons [57]) in favour of cancelling the visa (being those identified at Reasons [58]) outweighed the key factors against such a cancellation (being those identified in Reasons [59]). The key factors in favour of cancellation were the “circumstances leading to the ground of cancellation being made out” and “the underpinning facts leading to the convictions”, from which the Tribunal concluded that the appellant presents an ongoing risk to the Australian community (at [58]). The key factors did not include that the appellant had a sexual interest in minors.

31    The appellant’s submissions invited the Court to infer from paragraphs [24], [31], [47] and [58] of the Reasons, read together fairly and as part of the Tribunal’s decision as a whole, that the ongoing risk to the Australian community referred to in paragraph [58] of the Reasons was the risk that the appellant had a sexual interest in minors, rather than the risk that the appellant would re-offend.

32    It is trite law that a decision-maker’s reasons are to be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In my view, the inference which the appellant invites the Court to make does not arise on a fair reading of the Reasons, for the following reasons.

33    First, in view of the matters described in paragraph [29] above, I do not infer that the Tribunal reached a final view that the appellant had a sexual interest in minors. On a fair reading of the Reasons, the Tribunal – consistent with s 359AA of the Act – raised the possibility of such a finding, then referred to evidence and submissions to the contrary, and did not express a final view.

34    Secondly, a finding that the appellant had a sexual interest in minors was not a necessary step to the conclusion that there was an ongoing risk that the appellant would re-offend. This was not an element of, at least, the first two offences. Indeed, the effect of the evidence and submissions made by the appellant to the Tribunal was that the appellant committed those two offences without having such an interest and instead because of his desire for friendship.

35    Thirdly, and related to the second reason, it was open to the Tribunal to find that there was an ongoing risk that the appellant would re-offend without reaching a final view as to whether the appellant had a sexual interest in minors, in view of: the underlying facts set out at paragraphs [17] to [23] of the Reasons; the emotional immaturity of the appellant (Reasons [26], [53]); and the failure of the appellant to obtain the ongoing psychological support that had been recommended (Reasons [32], [48] and [53]).

36    Finally, the dichotomy which the appellant seeks to draw between the risk of re-offending and the risk that the appellant had a sexual interest in minors is not evident on the Reasons. To the extent that the Tribunal considered the possibility that the appellant had such an interest, it did so in the context of assessing the risk that he might re-offend, not as a separate risk.

37    Thus, I do not accept the first premise of the appellant’s argument. It follows that it is unnecessary to consider the second premise.

conclusion

38    For the reasons set out above, the appeal must be dismissed.

Associate:    

Dated:    13 September 2022