Federal Court of Australia
BFM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 467
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2. The application for judicial review is dismissed.
3. The applicant must pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FARRELL J:
Introduction
1 The applicant (to whom I will also refer as BFM21) is a citizen of New Zealand. In 2008, BFM21 came to live in Australia with his first wife (also a citizen of New Zealand), their two biological children and his step-daughter. In December 2013, he married an Australian citizen who has two adult children. His two biological children, one of whom is an adult, now live in New Zealand. He has lived permanently in Australia since 2008.
2 On 27 February 2020, BFM21 was convicted in the District Court of Queensland of “indecent treatment of a child under 12 years lineal descendant/guardian/carer”. The child was his biological daughter. He pleaded not guilty and has consistently said that he has no memory of any such conduct. After a four day trial, he was found guilty by a jury. He was sentenced to a term of two years’ imprisonment (suspended after he had served 12 months on the condition that he does not reoffend for two years). Relevantly, to the grounds of judicial review which BFM21 seeks to establish, the sentencing Judge remarked (sentencing Judge’s remark):
Given the offence you have been convicted of, you will be placed on the sex offenders’ register, which is very likely to limit interaction with children in the future and effectively eliminate any opportunities to reoffend.
3 BFM21 held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 30 April 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). There is no dispute that s 501(3A) required the delegate to cancel the visa. The delegate was satisfied that BFM21 did not pass the “character test” due to the operation of s 501(6)(a) of the Migration Act (substantial criminal record) on the basis of s 501(7)(c) (sentence to a term of imprisonment of 12 months or more) and because BFM21 was then serving a sentence of imprisonment on a full-time basis in Brisbane Correctional Centre in Queensland.
4 BFM21 received the letter dated 30 April 2020 advising BFM21 of the cancellation decision on 14 May 2020. The letter invited him to “make representations to the Minister about revoking the [cancellation] decision”. The following submissions and other material were provided to the Minister by or on behalf of BFM21:
(a) On 4 June 2020, BFM21 made representations to the Minister as to why the cancellation decision should be revoked;
(b) On 15 October 2020, the Minister’s delegate provided BFM21 with further information which the delegate said “may be taken into account when making the decision whether to revoke the [cancellation] decision to cancel your visa”. In response, BFM21 (by his solicitors) provided the Minister with a bundle of material including:
(i) A report dated 15 November 2020 from Professor James Freeman, consultant psychologist. Professor Freeman made a “provisional diagnosis” of “Non-Rapid Eye Movement Sleep Arousal Disorder (with sleep-related sexual behaviour – sexxomnia)”. He said the condition was “characterised by engaging in varying degrees of sexual activity while unconscious” and that the “origins of the uncharacteristic offence are likely to stem from” that condition; and
(ii) BFM21’s personal statement and 14 supporting statutory declarations. The statutory declarations were made by his current wife, his wife’s two children, his wife’s father and mother, his wife’s sister and her husband, his former and current employer, a friend of over 26 years who was a former partner of BFM21’s sister, BFM21’s father and mother, BFM21’s step-father and BFM21’s sister; and
(c) On 23 November 2020, BFM21’s solicitors provided the Minister with further written submissions in support of his revocation request (November submissions).
5 On 8 April 2021, the Minister (then the Hon Alex Hawke MP) made a decision under s 501CA(4) of the Migration Act not to revoke the cancellation decision (the Minister’s decision) because he was not satisfied that BFM21 passed the “character test” nor was he satisfied that there was “another reason” why he should revoke the cancellation decision within s 501CA(4)(b)(ii). BFM21 was advised of the Minister’s decision by letter dated 9 April 2021.
6 BFM21 now seeks judicial review of the Minister’s decision on the grounds that:
The Minister failed to consider a substantial and clearly articulated representation regarding BFM21’s future risk of reoffending. This claim relates to the sentencing Judge’s remark; and
The Minister’s decision involved illogical or irrational reasoning or legal unreasonableness.
He seeks an order in the nature of a writ of certiorari setting aside the Minister’s decision and an order in the nature of a writ of mandamus requiring the Minister to reconsider his request to revoke the cancellation decision according to law.
7 For the reasons set out below, the application should be dismissed.
Minister’s reasons for decision
8 A copy of the Minister’s reasons (or R) was enclosed with the letter dated 9 April 2021 notifying BFM21 of the Minister’s decision.
9 The Minister accepted that BFM21 had made representations in accordance with the invitation to do so: R[3]. The Minister’s finding (at R[9]) that BFM21 did not pass the character test is not controversial. The Minister considered (at R[10]-[72]), for the purposes of s 501CA(4)(b)(ii) of the Migration Act, whether he was satisfied that there was “another reason” why the cancellation decision should be revoked. This consideration generally addressed the factors which decision-makers are required to consider under Ministerial Direction 79 made under s 499 of the Migration Act, even though the Minister is not required to do so in making a decision personally. The Minister weighed his conclusions as to those factors at R[73]-[77] before concluding (at R[78]) that he was satisfied that there was not “another reason” why he should revoke the cancellation decision.
10 In the introductory part of his consideration of whether there was “another reason” to revoke the cancellation decision, the Minister said:
11. In undertaking this task, I considered [BFM21’s] representations and the documents he has submitted in support of his representations regarding why the [cancellation] decision should be revoked.
12. In the representations/documents submitted by or on his behalf, [BFM21] has articulated reasons why the [cancellation] decision should be revoked, which include:
- He did not consciously commit the crime of which he was convicted (psychological assessment supports that the offending was a subconscious act during his sleep).
- Australia is his home, where he has an established career and a close family; he would like to remain here with his wife and step-children.
- He has strong employment ties in Australia and his previous job is waiting for him on release.
- While he has relatives in New Zealand, his ties in Australia are stronger. Also, his daughter, the victim of his offending, lives in New Zealand and could encounter him there, which would be traumatic for her.
- He would struggle in New Zealand, as he would be without his family and would find it hard to establish himself as a chef there, especially in the wake of the pandemic, which has reduced the employment opportunities.
- He fears for his safety in New Zealand from members of [a named gang], who have a connection to his ex-wife, and who have already made threats on social media.
11 The factors the Minister considered are as follows.
12 Expectations of the Australian community (R[13]-[15]): The Minister noted that BFM21 acknowledged that he had breached the expectations of the community by his offence. He also noted the submission that that factor should be given “minimal weight” having regard to the factors that the offence was an isolated incident, BFM21 has a substantial employment history and strong ties to Australia, he has a supportive family, and he has paid a “price” in going to prison, separation from his family and losing his relationship with his biological daughter.
13 The Minister said that his decision was not about “paying the price”. Rather it is an administrative decision about the regulation of entry into and presence in Australia of non-citizens who have been convicted of an offence. The Minister concluded that although “some members of the community may have some sympathy” for BFM21, “the Australian community, overall, would expect that [BFM21] not hold a visa”.
14 Strength, nature and duration of ties (R[16]-[29]): The Minister took into account that BFM21 had then been in Australia for 12 years and considers it his home. He acknowledged that BFM21 had “strong family ties in Australia” including his wife who is an Australian citizen, her two adult children, his father, two half-sisters, a step-sister, a niece and his wife’s extended family including his father-in-law, brother-in-law and sister-in-law as well as a current and former employer, all of whom provided supporting letters. The Minister considered the impact on BFM21’s wife’s business and her parents (one of whom has a terminal illness) if she were to leave Australia. The Minister accepted that if he did not revoke the cancellation decision, BFM21’s immediate family in Australia would experience emotional, physical and financial hardship and that BFM21 had made a positive contribution for more than 10 years in the community. The Minister found that BFM21’s ties to Australia “weigh strongly in favour of revocation”.
15 Claims of harm if returned to New Zealand (R[30]-[37]): The Minister noted the representation that BFM21 will face serious harm if he is returned to New Zealand because members of a criminal gang, who had connections with his ex-wife, made “threats via social media against his life if he goes back there”. Although he said that he was not in a position to make a full assessment of the danger posed by those threats, the Minister noted that BFM21 had made three trips to New Zealand since moving to Australia, apparently without incident, including one after BFM21’s offending was reported. The Minister also said that it was not clear why BFM21 would need to live in a part of New Zealand where he is known or could not rely on the normal protections of law. Under this heading, the Minister noted the processes involved should BFM21 decide to make an application for a protection visa. In the “Conclusion” of the Minister’s reasons, at [74], the Minister accepted that BFM21 “will face a real risk of harm upon return in the nature of that stated above”.
16 Extent of impediments if removed (R[38]-[44]): The Minister accepted that BFM21’s ties to Australia are stronger than his ties to New Zealand but noted that he had previously worked as a chef in New Zealand (acknowledging that it may be more difficult to find work because of the pandemic) and he did have family support available in New Zealand. The Minister also accepted that BFM21’s separation from his family in Australia, especially his wife, would be very hard on him and that it would place great strain on their relationship if his wife gave up her life in Australia to go with him.
17 Impact on victims (R[45]-[46]): The Minister recognised the theoretical possibility that BFM21 could come into proximity with his biological daughter who now lives in New Zealand and that could aggravate her trauma. However, the Minister noted that BFM21 had had no contact with her for many years, even when he visited New Zealand, and that there was no indication that BFM21 would try to have contact with her. He considered that it was not likely that BFM21 would live near his ex-wife or daughter because of the threats against him allegedly made by criminal contacts of his ex-wife. The Minister therefore found that the chances of BFM21 encountering his daughter are “very low”.
18 Protection of the Australian Community (R[47]-[72]): This consideration was considered under the sub headings “Criminal conduct” and “Risk to the Australian community”. At R[47], the Minister said (emphasis added):
In coming to my decision about whether or not I am satisfied that there is another reason why the [cancellation] decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular [BFM21’s] claim he has not reoffended. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.
19 Criminal conduct (R[48]-[57]): The Minister stated (at R[48]) that he was of the view that sexual offences are very serious, especially when the victim is particularly vulnerable, such as a child in the care of the perpetrator, as in this case.
20 The Minister noted (at R[49]) the offence of which BFM21 was convicted, that BFM21 denied the offence so that the matter proceeded to a four day hearing and that, on being convicted, he was placed on the sex offender’s register.
21 At R[50]-[52], by reference to the transcript of proceedings in the District Court, the Minister noted:
(a) How BFM21’s daughter described the commission of the offence in her evidence given to the District Court and that the offence was found to have most likely occurred between February and June 2011;
(b) That BFM21’s daughter gave statements in April 2015 and September 2017, she was cross-examined in pre-recorded evidence in October 2017, that she was recalled at trial to be cross-examined in February 2020 and that BFM21 did not give or call evidence;
(c) The sentencing Judge’s finding that BFM21’s offending behaviour had caused “significant and long-lasting impact on the victim’s emotional well-being”; and
(d) The sentencing Judge’s finding that the offence was “very serious” but that her Honour accepted it was “a brief single episode of offending”. The Minister also noted the sentencing Judge’s findings that there was an absence of any aggravating features such as violence but that the offence was a “gross and egregious breach of trust” as his daughter had relied on BFM21 “to feel safe, because her mother was suffering mental problems at the time, had overdosed and could not care for her”.
22 In relation to Professor Freeman’s report, the Minister then said the following at R[53]-[54] (emphasis added):
53. I am conscious that [BFM21] has presented a report of an assessment made by Professor James Freeman, an eminent psychologist. Professor Freeman has found that [BFM21] was suffering from a condition known as ‘sexsomnia’, whereby he was susceptible to engaging in sexual activity unconsciously, while still asleep. [BFM21’s] current partner has confirmed that she has witnessed instances of such behaviour, but that they have now ceased after he reduced his alcohol intake.
54. While this information provides an explanation for [BFM21’s] actions against his daughter and his alleged inability to have any memory of those actions, I note that the judge stated when sentencing that ‘There is no medical or psychological evidence before me of any kind which supports any inference that your mental functioning was impaired or diminished in any way at the time of this incident.’ I can only conclude that the Court did not have the opportunity to consider this psychological evidence. However [BFM21] had the opportunity to seek expert assessment and present it to the Court and I consider it is not appropriate for me to go behind the verdict reached by due legal process. Therefore I must accept that decision, which found him guilty of a most serious offence. His placement on the sex offenders register reflects the gravity of the sexual offence.
23 At R[55], the Minister noted that custodial sentences are normally the last resort in the sentencing hierarchy and found that the two-year sentence was “a further reflection of the very serious nature of his offending”. At R[56], the Minister recognised that [BFM21] has no other history of any comparable offending, or indeed of any other particularly serious offending. In summary, the Minister found (at R[57]) that [BFM21’s] single serious conviction “must be considered to constitute a very serious criminal history, despite the further information he has presented which appears to provide an alternative explanation for his actions”.
24 Risk to the Australian community (R[58]-[72]): At [58], the Minister said (emphasis added):
I have considered whether [BFM21] poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [BFM21] has undertaken to reform and address his behaviour. I have also taken into account [BFM21’s] overall conduct in the custodial and non-custodial environment, and his insight into the offending.
25 The Minister noted (at R[59]) that BFM21 maintains his innocence, had recently withdrawn from an appeal of his conviction, “states he will never re-offend” and submitted “that he does not pose a risk to the community” (emphasis added).
26 At R[60]-[65], the Minister said (emphasis added):
60. [BFM21’s] representative has described the offence in more details. It occurred most likely when the victim, his daughter was aged around [redacted]. [BFM21] was sharing a bedroom with his son and daughter at his father's house, following his separation from their mother; they occasionally slept in the same bed. One night, the victim awoke to find [BFM21] committing the act on her. The representative states the offending was ‘unconsciously done’. [BFM21] has no recollection of the offence and doubts his culpability. At that time, he was drinking heavily to cope with the unhappy marriage and breakup process, and his binge drinking habit seems to have triggered his sexual behaviour in his sleep; he has since been drinking less and only drinks beer. He has no sexual interest in children, including his daughter.
61. As I have noted above, [BFM21] was the subject of a detailed assessment report by an eminent psychologist, Professor James Freeman of Queensland University (also in private practice as a consultant). This report is dated 15 November 2020 and does not appear to have been available to the Court, as I have also noted above.
62. Professor Freeman diagnosed [BFM21] as suffering from Non-Rapid Eye Movement Sleep Arousal Disorder (with sleep-related sexual behaviour – ‘sexsomnia’), a recognised condition characterised by engaging in varying degrees of sexual activity while unconscious. It was reported that [BFM21] had a long history of such behaviours, but this was not properly acknowledged and addressed, as it had not affected his relationships. Professor Freeman also found that [BFM21’s] ‘sexsomnia’ behaviour only occurred where he slept, so the sharing of a bed with his daughter on the specific occasion was a key enabling element in his offending. Professor Freeman found [BFM21] to be remorseful and at low risk of reoffending. I recognise the Professor’s high standing in the medical profession and accept his opinion.
63. [BFM21’s] representative states [BFM21] makes a ‘high level of commitment to avoiding similar high risk situations in future, such as sharing a bed with a person who is not his sexual partner’. It is also submitted that the following protective measures would prevent him reoffending: supportive accommodation with his wife; employment; stable mental health; suspended sentence and the placement on the sex offenders’ registry. The breach of the latter two factors would likely see him returning to prison and/or attract criminal prosecution. She submits [BFM21] ‘poses a very low and not unacceptable risk of reoffending’.
64. With the assistance of the psychologist, [BFM21] has developed a New Futures Plan to prevent him from re-offending; a copy was submitted to the Department.
65. I am mindful this medical evidence does not appear to have been presented to the court for cross examination, which I feel lessens the weight I can give it somewhat. However I acknowledge that the condition of ‘sexsomnia’ may explain [BFM21’s] offending and arguably reduce his culpability. I also accept that his awareness of the condition enables him and those around him to take steps to avoid it. However it is not possible to be completely certain that [BFM21] will never again drink to excess and if he does so, the possibility of further ‘sexsomnia’ will arise. Should there be a vulnerable female in the vicinity, his actions could amount to a criminal offence again.
27 The Minister noted:
(a) Representations that BFM21’s risk of offending in the community had been tested since the incident more than nine years previously; he did not reoffend despite being unsupervised or while on low-level supervision while on bail in 2016, during which time he travelled interstate and overseas and visited his son in New Zealand; he received support from his family, attended psychological sessions for anxiety and maintained employment: R[66];
(b) A statement from BFM21’s most recent employer that she considers him to be of no risk of reoffending and she will act as his mentor to support his rehabilitation: R[67];
(c) That while BFM21 had failed to note his driving offences in New Zealand (a conviction for drink-driving and careless driving in 1993) on his incoming passenger cards on the basis that he did not think they were criminal offences. The Minister said that BFM21 did not attempt to conceal the driving offences from the Department. The Minister accepted that the failure to disclose on the incoming passenger cards was an oversight but found that it was nonetheless the provision of misleading information and BFM21’s failure to declare his convictions added to the seriousness of his overall conduct “albeit not greatly” R[68]; and
(d) That his prison records show his good behaviour, employment and low risk of reoffending score, though the report indicates that that score does not indicate his risk of violent offending: R[69].
28 The Minister then said at R[70]-[72] (emphasis added):
70. I have given weight to the factors that may lower the likelihood of reoffending detailed by [BFM21] in his representations and efforts at restitution, the preventive strategies he has taken towards rehabilitation, his plans for the future, his supportive family and low likelihood of reoffending. Notwithstanding these matters, I could not rule out the possibility that [BFM21] may reoffend in a similar manner, especially if he lapses into heavy drinking again or is under stress.
71. I find that there is a risk, albeit a low risk, that [BFM21] will reoffend.
72. I consider that should [BFM21] reoffend in a similar manner involving sexual offending against a child, it could result in serious physical and psychological harm.
29 The Minister set out his conclusions at R[73]-[78] as follows (emphasis added):
CONCLUSION
73. As explained above, in coming to a decision on [BFM21’s] request for revocation of the mandatory cancellation of his visa, I find [BFM21] made representations in accordance with the invitation, but I was not satisfied that [BFM21] passes the character test (as defined in s501 of the Act).
74. In addition, I have considered the length of time [BFM21] has made a positive contribution to the Australian community for over 10 years and the consequences of non-revocation of the [cancellation] decision for his other family members, and the extent of impediments that [BFM21] would face if he were removed to New Zealand. Also that [BFM21] will face a real risk of harm upon return in the nature of that stated above.
75. On the other hand, in considering whether I was satisfied that there is another reason why the [cancellation] decision should be revoked, I gave significant weight to the serious nature of the crime committed by [BFM21], which is of a sexual nature, and involved a vulnerable member of the community, that being a minor.
76. Further, I find that the Australian community could be exposed to significant harm should [BFM21] reoffend in a similar fashion. I could not rule out the possibility of further offending by [BFM21].
77. I concluded that [BFM21] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community and the expectations of the community outweighed any other considerations as described above. These include his period of residence in and ties to Australia through family, employment, significant volunteer/charity work, and any hardship [BFM21’s] family and social networks are likely to suffer in the event the [cancellation] decision is not revoked, as well as the risk of harm he may face on a return to New Zealand.
78. Therefore, I am not satisfied that there is another reason why the decision to cancel [BFM21’s] Class TY Subclass 444 Special Category (Temporary) visa should be revoked, as required by s501CA(4)(b)(ii) of the Act. Consequently, my power to revoke is not enlivened and [BFM21’s] visa remains cancelled.
First ground
30 By the first ground, BFM21 contends that the Minister failed to consider properly BFM21’s representations regarding the sentencing Judge’s remark (see [2] above), as he was required to do.
31 The key propositions said to underlie this ground of review are:
First, the Minister was legally required to consider BFM21’s representations;
Second, BFM21 advanced clear representations about the sentencing Judge’s remark relevant to the risk of reoffending; and
Third, the Minister failed to consider or properly consider those representations and thereby denied BFM21 a realistic possibility of a different outcome, because the overlooked representations were directly relevant to the primary adverse factor relied on by the Minister, namely, risk and protection of the Australian community.
BFM21’s submissions
First proposition
32 As to his first proposition, BFM21 submitted that, although s 501CA(4) of the Migration Act does not say so in express terms, an applicant’s representations must be considered by the Minister, and this requires an “active intellectual exercise directed at’ the representations”: see Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2019) 362 ALR 48 (Buadromo) at [41] and [42] (Besanko, Barker and Bromwich JJ). Generally, the more clearly a claim has been advanced for consideration, the greater may be the need for the decision-maker to consider the claim in clear terms: see AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] ] (Flick, Griffiths and Moshinsky JJ).
33 BFM21 relied on Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane) at [30] in which Rangiah J said:
If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister’s error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as “information” (or “material”, or “evidence”), rather than an “argument”, there may be jurisdictional error where the “information” is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is “critical” in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome.
For convenience, I will hereafter refer to an argument of the kind described in Viane at [30] as an “articulated substantial argument” and “information”, “material” or “evidence” as “evidence”.
Second proposition
34 As to his second proposition, BFM21 submitted that his representations contained a clearly articulated substantial argument to the effect that the sentencing Judge’s remark had expressed an opinion that BFM21’s placement on the sex offenders register was not merely a deterrent, but “very likely to limit interaction with children in future and effectively eliminate any opportunities to reoffend”.
35 BFM21 relied on the following material from the November submissions:
(a) Under the heading of “Protection of the Australian Community: Risk of Recidivism”, submissions at [35] and [36] as follows (emphasis added):
35. The likelihood of recidivism (para 13.1.2(1)(b)) is central to this case. Central to this is the psychological evidence of Prof Freeman and consideration of the context in which his offence occurred and the specific, protective barriers militating against him reoffending. As the Direction is ultimately minded towards the “unacceptability” of a risk of harm, the relevant test is whether any risk posed by him is at an unacceptable level (and not whether there is no risk at all). This approach is consistent with the principles enunciated in para 6.2(1) and 13.2(1) of the Direction.
36. We submit that [BFM21’s] risk is both very low and not unacceptable …
The “Direction” referred to in these submissions is Direction 79.
(b) Under the heading of “Insight and Protective Factors”, a submission at [53(e)] relating to protective measures as follows (footnotes omitted, emphasis added):
53. The totality of the above suggests the triggers of his offending have now been recognised and ameliorated by him. They will be further abated through other protective measures, namely:
…
(e) Placement on the sex offenders’ registry pursuant to the Child Protection (Offending Reporting and Offender Prohibition) Act 2004 (Qld) – this provides a further layer of supervision. [BFM21] will be subject to reporting obligations for a five-year period. The relevance of this obligation is that Queensland Police will have his personal details and he is required to disclose any contact with children. They will also have the powers conferred by the Act to apply for a prohibition order should he engage in any ‘concerning conduct’. Further, any breach of these obligations will attract criminal prosecution, re-sentencing and in all likelihood a return to prison.
(c) Under the heading of “Opinions of Risk”, submissions at [55] and [56], as follows (footnotes omitted, emphasis added):
55. In terms of his overall findings, Prof Freeman concluded [BFM21’s] prospects of avoiding recidivism can be considered positive. Particular emphasis was placed [on his results] on the actuarial tools, his “sufficient level of insight” into the likely origins of his behaviour, his “robust” New Futures Plan, the absence of any psychopathic tendencies, that sexual recidivism is one of the least likely committed crimes, his lack of outstanding criminogenic treatment needs and finally, that he has been generally pro-social in nature. He also opined that his first custodial term of imprisonment, and the threat of his deportation, are significant deterrents against both reoffending and a failure to recognise and avoid high risk situations in future.
56. While the sentencing judge made no express findings as to his risk, there are two relevant features of his sentence. The first is [her] comment that [BFM21’s] placement on the sex offenders’ register is “very likely to limit interaction with children in future and effectively eliminate any opportunities to reoffend”. The second can be discerned from [her] Honour’s decision to issue a partially suspended sentence as penalty. This sentencing structure suggests it was not considered necessary to impose a more onerous supervision order, such as a parole order, despite having discretion to do so. In combination, we infer the sentencing judge considered he had good prospects of avoiding reoffending in future.
At trial, counsel for BFM21 did not rely on the fact that the sentencing Judge elected to suspend a year of BFM21’s sentence: see T4: 7-9.
36 BFM21 contended that these representations advanced a reason why cancellation should be revoked in a clear manner and if accepted they could have (in combination with the other positive factors the Minister accepted) been dispositive of the outcome.
Third proposition
37 BFM21 submitted that the Minister failed to engage in an active intellectual process directed at the representation regarding the sentencing Judge’s remark. He submitted that this may be inferred from the absence of any explicit reference to the Judge’s opinion expressed in the sentencing Judge’s remark.
38 BFM21 submitted that the requirement not to construe the Minister’s reasons “with an eye keenly attuned to the perception of error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)) does not require that any ambiguity be resolved in the Minister’s favour: see Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at [116] (Davies, Rangiah and Steward JJ). Nor does it require an approach “so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [57] (Marshall, North, Flick JJ). With those principles in mind, BFM21 submitted that a fair reading of the Minister’s reasons demonstrates that the he failed to engage in an active intellectual process directed at the submission about the sentencing Judge’s remark and he failed to actively think about the submission. BFM21 submitted that:
(a) That may be inferred not merely from the absence of any reference to the sentencing Judge’s remark or BFM21’s submissions about the sentencing Judge’s remark in the Minister’s reasons, but also from the fact that the Minister summarised BFM21’s representations without mentioning the argument about the Judge’s opinion expressed in the sentencing Judge’s remark. I note that the respondent appears to have taken this submission to refer to R[12] (see [10] above) in his submissions to the Court; and
(b) The Minister’s brief references to the sex offenders’ register were for different reasons.
39 BFM21 noted that the Minister only made two brief references to BFM21’s placement on the sex offender’s register. First, at R[54], in the discussion of the seriousness of BFM21’s offence, the Minister said that his “placement on the sex offender’s register reflects the gravity of the sexual offence”. Second, at R[63], in a discussion about risk to the Australian community, where the Minister noted BFM21’s submission that “the following protective measures would prevent him reoffending: supportive accommodation with his wife; employment; stable mental health; suspended sentence and the placement on the sex offender’s registry” and that “breach of the latter two factors would likely see him returning to prison and/or attract criminal prosecution”. However, the Minister’s reasons did not mention the part of the sentencing Judge’s remark that placement on the sex offender’s register “effectively eliminated” BFM21’s opportunity to reoffend against children”.
Respondent’s submissions
40 The respondent accepted that the Minister had a “mandatory obligation” to consider an articulated substantial argument and important evidence (to use my defined terms).
41 He submitted, however, that in this case it is not easy to classify what BFM21 says was overlooked as a “representation” or “a substantial, clearly articulated argument” of the kind discussed in Viane at [30]. That is because s 501CA(4)(b)(ii) focusses on the “reason” why the cancellation decision should be revoked, and in this case, one of the reasons was said to be because BFM21 was a low or very low risk of reoffending (which the respondent defined as the Representation). He said that the Representation was supported by a suite of evidence and factors referred to in the November submissions at [34]-[57], including the sentencing Judge’s remark. The respondent submitted that the sentencing Judge’s remark was “just evidence” said to support the Representation and did not, in itself, advance an articulated substantial argument. The Representation operated at a higher level.
42 The respondent accepted that if the Minister overlooked the sentencing Judge’s remark, jurisdictional error might follow. Nonetheless, he said that the distinction between the Representation and evidence was important in ascertaining what inferences can be drawn from the Minister’s reasons and whether any error was jurisdictional. He said that is because, if the Minister did not deal with the Representation, a cogent basis to consider that it had been overlooked (and that the error was jurisdictional) may arise. However, the respondent submitted that the inference is not readily available in the context of “non-references” to evidence or submissions that just refer to evidence.
43 The respondent submitted that, given the way BFM21’s case is framed, the logical starting point is to consider whether the sentencing Judge’s remark was overlooked. He said that if it cannot be concluded that the evidence was overlooked, it is difficult to infer that the submissions which purported to draw the Minister’s attention to it were overlooked.
44 The respondent relied on the following principles:
(a) A judicial review applicant bears the onus of establishing that a particular matter was not considered: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 (BVD17) at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). That is not a finding that will be lightly made and must be supported by clear evidence: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [48] (Griffiths, White and Bromwich JJ))
(b) The obligation to “consider” a matter is referable to an obligation to engage in an active and intellectual process directed to that matter. That active and intellectual process – as expressed in other contexts – is simply a requirement to be mindful of (or “think about”) the matter in an active and intellectual way: see Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) at [36(c)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). The “degree of consideration” required is affected by the centrality of the matter to the issue the decision-maker has to address and its prominence: see Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37] (Reeves, O’Callaghan and Thawley JJ);
(c) The Minister has no duty to make findings about any particular matter: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [68]-[69] (McHugh, Gummow and Hayne JJ). Nor does the obligation to consider a matter carry with it such a duty. A decision-maker can, quite properly, consider a matter by thinking about the matter (including the appropriate weight to attribute to such a matter) without making any findings: see Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 (Guclukol) at [41]-[53] and [55] (Katzmann, O’Callaghan and Derrington JJ);
(d) What inferences can be drawn from a decision-maker not referring to a matter must be construed in light of two settled principles: first, “a statement of reasons must be read fairly and not in an unduly critical manner”; and second a statement of reasons “must be read in light of the content of the statutory obligation pursuant to which it was prepared”: see BVD17 at [38]; and
(e) The Minister’s statutory duty to provide reasons does not require him to refer to the evidence (or submissions) before him (see Buadromo at [49]) or what matters he considered (or “thought about”) in connection with his decision. It would, in fact, be almost administratively unworkable to require this. Rather, the Minister’s obligation to give reasons is set out in s 501G(1)(e) of the Migration Act read with s 25D of the Acts Interpretation Act 1901 (Cth). That only requires the Minister to set out the findings of fact that he actually made and the evidence upon which those findings were (in fact) based: see Minister for Immigration and Multicultural Affairs v Li Yue [2000] FCA 856; (2000) 176 ALR 66 at [44] (Hill, Matthews and Lindgren JJ); Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387 at [9] (Emmett J); Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45] (Derrington J, with whom Logan J at [12] agreed and Greenwood J at [1] generally agreed); and
(f) Having regard to the matters referred to in (b) to (e) above, the mere failure of the Minister to refer to an item of evidence cannot, of itself, provide a basis for inferring that evidence was overlooked. Where the Minister does not make a finding of fact connected with evidence, the usual inference to draw (though it is rebuttable) is that the Minister considered that matter to be immaterial: see Yusuf at [5] (Gleeson CJ) and [69] (McHugh, Gummow and Hayne JJ). The notion of immateriality is tied to weight of the evidence, not whether it was considered;
(g) If an immateriality inference cannot be “sensibly understood” as a matter considered but not mentioned, a Court may infer that the relevant matter was not considered: see Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ);
(h) In evaluating whether a matter has been overlooked, the Court may draw inferences from all the evidence available. This includes by reference to considerations of whether findings of higher generality have been made or whether it is apparent that the decision-maker has closely read a document containing evidence upon which it is alleged was overlooked.
45 The respondent noted that, in support of the proposition that the sentencing Judge’s remark was overlooked, BFM21 relies on:
(a) The contention that the Minister’s references to the sex offenders’ register were not for the purpose of evaluating risk. The respondent submitted that that is not right and notes that R[63] includes the following sentence:
It is also submitted that the following protective measures would prevent him reoffending: … the placement on the sex offenders’ registry.
(b) The contention that the “so-called” submission connected with the sentencing Judge’s remark was not mentioned in the Minister’s summary of the representations at R[12], which is said to invite an inference that the remark was overlooked. The respondent submitted that while it is factually true that the sentencing Judge’s remark was not referenced in that part of the Minister’s reasons, it is difficult to see how that is probative of the sentencing Judge’s remark being overlooked. He says that R[12] was briefly referring, at a very high level, to what the Minister saw as the six primary matters in BFM21’s case. The expectation that the Minister would, at R[12], reference one of many specific submissions made by BFM21 and his representative is not readily available, particularly where the submission was simply a reference to evidence supporting BFM21’s case concerning risk.
46 The respondent submitted that there are five factors which weigh against a conclusion that the sentencing Judge’s remark was overlooked and they compel the inference that the Minister considered the remark.
47 First, at R[7], the Minister indicated that he had considered the representations made by BFM21 and the documents he submitted in support of his representations. This should ordinarily be taken at face value and not understood as mere verbal formulae: see Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588 at [54] (Moshinsky J); Carrascalao at [127].
48 Second, the respondent submitted that it is clearly apparent that the Minister read both the sentencing transcript in which the sentencing Judge’s remark was made (see R[50]-[52] and [54]) and the November submissions, and in particular in relation to the issue of risk (see R[60], [64] and [66]). The respondent emphasised that where it is apparent that a decision-maker has read a document (particularly in a close way), the inference that he or she has overlooked or not properly considered a particular part is difficult to draw: see SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 (Heerey, Branson and Emmett JJ) at [27]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [73] (Gummow J, with whom Heydon and Crennan JJ agreed at [91] and [92]); BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 at [47] (Moshinsky J);
49 Third, the Minister’s reasons expressly showed (or left little doubt) that the Minister was evidently conscious of the sentencing Judge’s remark. The Minister referred to BFM21 being placed on the sex offenders’ register (the very part of the sentencing transcript where the sentencing Judge’s remark was made) at R[49], [54] and [63]. At R[63] the Minister expressly referred to the submission made in the November submissions that one of the protective measures in place to mitigate risk was BFM21 being placed on the sex offenders’ register. The respondent submitted that that is an express reference to the sentencing Judge’s remark;
50 Fourth, the Minister concluded that BFM21 presented a low risk of reoffending. The respondent submitted that the conclusion was reached after referencing the whole of the evidence, including the evidence referred to previously. That is a finding of higher generality that involves (and subsumes) consideration of the sentencing Judge’s remark. It makes it difficult to infer that the sentencing Judge’s remark was overlooked: see Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ); Buadromo at [46] and [61]; Yusuf at [91] (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]).
51 Fifth, the respondent submitted that, even if there had been no reference to the sentencing Judge’s remark in the Minister’s reasons (which is denied for the reasons previously given), the failure to refer to it could be “sensibly understood” because:
(a) The sentencing Judge’s remark had limited relevance to risk in the context of the Minister’s acceptance of the view expressed by Professor Freeman that the likely cause of BFM21’s offending was his sexsomnia: see R[62]. BFM21 had pleaded not guilty on the basis that the events alleged had not taken place and BFM21 presented no evidence at trial or in relation to sentencing that the offending might have occurred on account of his sexsomnia condition. Therefore, BFM21’s profile before the sentencing Judge was as a person with paedophilic tendencies. In his reasons, the Minister accepted a number of primary conclusions in Professor Freeman’s report concerning BFM21’s sexsomnia condition. That had the logical consequence that the risk posed by BFM21 took on a different profile before the Minister than it had before the sentencing Judge in that it was confined to persons in his vicinity when he slept and was not necessarily limited to children. Viewed through that prism, being placed on the sex offenders’ register was inherently not a matter that was probative of the risk posed by BFM21;
(b) The sentencing Judge’s remark “evidently” involved a degree of (seemingly unintended) exaggeration to the extent that her Honour said that BFM21 being placed on the sex offenders’ register would “effectively eliminate any opportunities to reoffend”. The respondent submitted that the sentencing Judge’s remark involved exaggeration having regard to the terms of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) and both the sentencing Judge and BFM21’s own solicitors acknowledged that that legislation only had the consequence of limiting contact with children. The respondent submitted that all that the placement on the sex offenders’ register largely did was impose reporting obligations;
(c) BFM21’s solicitors “quite sensibly” never pitched BFM21’s case as high as suggesting that he posed no risk of reoffending; their submission was that being placed on the sex-offender’s register was a risk mitigation factor. Accordingly, BFM21 never sought to rely on the sentencing Judge’s remark literally; and
(d) Professor Freeman’s report suggested that BFM21 presented a “low” risk of reoffending; he did not suggest that BFM21 being placed on the sex offenders’ register eliminated his risk of reoffending. That is relevant because Professor Freeman was aware of BFM21’s sexsomnia condition while the sentencing Judge was not.
52 Last, the respondent submitted that even if the Minister overlooked the sentencing Judge’s remark, it is difficult to see how it was could be material, as required to make out a claim of jurisdictional error. Consistently with expert opinion, the Minister found that BFM21’s risk of reoffending was low. In circumstances where the sentencing Judge’s remark lacked probative force for the reasons set out at [51] above, the respondent submitted that it is difficult to see there being any “realistic possibility” of BFM21’s risk profile being reduced if the sentencing Judge’s remark was considered
BFM21’s submissions in reply
53 The relevant representation was not the Representation stated by the respondent. The relevant representation as made in the November submissions at [36] (see [35(a)] above) and [57] (emphasis in the submissions) was:
The cumulative effect of all of these factors is that [BFM21] poses a very low and not unacceptable risk of reoffending.
54 BFM21’s argument about the sentencing Judge’s remark should fairly be understood as a claim rather than merely a statement made as part of the overall representation because:
(a) Through his solicitors, BFM21 put the argument about the sentencing Judge’s remark separately from the argument about “Insight and Protective Factors”;
(b) The sentencing Judge’s remark was of a different character than a mere consideration of the legal requirements of inclusion on the sex offenders’ register. It conveyed the considered opinion of an experienced Queensland trial judge regarding the practical significance of a sex offender registration for this particular individual, BFM21; and
(c) BFM21’s argument about the sentencing Judge’s remark put the remark in the context of the sentencing Judge’s decision to impose a partially suspended sentence and inferences to be drawn from the Judge’s views of BFM21’s rehabilitative prospects. This submission was footnoted to the Court Book at p 160 which I take to refer to the November submissions at [56] under the heading “Opinions of Risk” (see [35(c)] above).
55 BFM21 submitted that, even if the sentencing Judge’s remark were simply to be treated as evidence, the Full Court in Viane at [30] made it clear that there may be jurisdictional error where the evidence is sufficiently important. The sentencing Judge’s remark was sufficiently important because:
(a) This was a finely balanced case where the Minister accepted many factors favourable to BFM21; and
(b) On the issue of risk to the community, the Minister (at R[71]) accepted the first part of BFM21’s argument (that BFM21 posed a “low risk” of reoffending) but nonetheless (at R[77]) the Minister did not accept the second part of the argument (that BFM21 did not pose an “unacceptable risk”).
As the sentencing Judge’s remark was directly relevant to the assessment of the acceptability of the risk being weighed by the Minister, the argument about the sentencing Judge’s remark as an item of “evidence” was sufficiently important that it could have been (when taken together with other factors) dispositive of the outcome.
56 BFM21 made two general points concerning the respondent’s submissions to this Court summarised at [44] above as follows.
57 First, to say that the Minister “has no duty to make findings about any particular matter” oversimplifies the relevant principles. The point determined in Yusuf was not that a decision-maker is never obliged to make findings about any particular matter. It was simply that a general obligation to set out “the findings on any material questions of fact” required the setting out of the finding subjectively made and did not actually require the making of particular findings. BFM21 submitted that an obligation to make findings may, however, arise in other ways and noted that in Omar at [39] the Full Court said (emphasis in submission):
Giving meaningful consideration to a clearly articulated and substantial or significant representation on the risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law …
58 BFM21 noted that that proposition was reaffirmed by the Full Court in Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 at [15] (McKerracher, Kerr and Wigney JJ). BFM21 noted that in Guclukol at [50], the Full Court said (emphasis in submission):
The point there articulated was not that there existed any super added duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they included where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be excised.
59 BFM21 submitted that, on either view, the absence of any finding by the Minister in BFM21’s case regarding the argument or evidence about the sentencing Judge’s remark is important; it was objectively significant because the Minister accepted that there was a “low risk” risk of reoffending and the final balance then turned upon whether there was an “an acceptable risk”. Viewed objectively, the sentencing Judge’s remark was significant to that final balancing exercise.
60 Second, BFM21 submitted (with reference to the respondent’s submission summarised at [44(f)] above) that where a decision-maker makes no finding of fact on a particular matter, it is not simply to be assumed that the decision-maker must nevertheless have considered the matter. With reference to the plurality’s judgment in Yusuf at [69] and Gaudron J’s judgment at [35], BFM21 submitted that the proper approach was described by the Full Court of this Court in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [41(e)] (Kenny, Griffiths and Mortimer JJ) as follows:
Merely because there is no reference in the decision-maker’s reasons or decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reasons for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that the evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making …
61 BFM21 submitted that the Minister’s assertion that he considered all submissions is not determinative. While the Court does not ignore such an assertion, the fact that a decision-maker says that they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard and the court must make its own qualitative assessment: see Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).
62 He further submitted that the respondent’s submissions as to why the sentencing Judge’s remark may be understood to have not been a “materially weighty or probative matter in the context of his risk assessment” (summarised at [51] above) are flawed because:
(a) The respondent’s submissions overlooked the distinction between the question of whether BFM21 posed a “low risk” and whether he posed an “unacceptable risk”. The sentencing Judge’s remark was directly relevant to the assessment of the acceptability or otherwise of the “low risk” that was already found by the Minister;
(b) The respondent’s argument that the sentencing Judge’s remark had a “degree of exaggeration” impermissibly strays into merits review. It was open to the Minister to make findings of fact about the sentencing Judge’s remark but what is clear from his reasons is that he made no such findings.
63 Last, on the question of materiality, BFM21 reiterated that there was a “realistic possibility” that the Minister’s assessment of acceptability of BFM21’s low risk of reoffending may have been different had he considered the argument or evidence relating to the sentencing Judge’s remark having regard to how finely balanced the matter was.
Consideration
64 In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1/2021) at [21]-[24], the High Court set out what is required of a decision-maker who must make a decision under s 501CA(4)(b)(ii) of the Migration Act where representations have been made in response to the invitation required under s 501CA(3) (footnotes omitted):
Decision makers’ approach to representations
22 Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26 Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
27 None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
65 Although there were differences in emphasis, the way the parties argued the first ground was consistent with the approach adopted by the High Court in Plaintiff M21/2021.
66 Apart from the title page, there are four pages of transcript of the District Court sentencing proceedings. The Minister (at R[50]-[52], see [21] above) replicated comments made by the sentencing Judge on the first two and a half pages of transcript. The fact that there was no medical evidence before the District Court is mentioned midway on the third page and the relevance of that is discussed at R[54]. The only reference to the sex offender’s register in the transcript is made in the last paragraph before the sentencing Judge’s direction to adjourn the Court and it is made in the context of the sentencing Judge’s remark. The Minister refers to BFM21’s placement on that register as one of the consequences of his conviction at R[49], he refers to it as reflecting the gravity of the offence of which BFM21 was convicted at R[55] and he refers to placement on the sex offenders’ register as one of five protective measures against reoffending at R[63]. There can be no doubt that the Minister paid careful attention to what the sentencing Judge said in all of the (effectively) four pages of transcript.
67 Further, there can be no doubt that the Minister read and understood the relevant parts of the November submissions. At R[63], the Minister quoted the November submissions at [36] (see [35](a) above): that is, the submission that BFM21 “poses a very low and not unacceptable risk of reoffending”. Having regard to R[63] and the other references to the sex offenders’ register in the Minister’s reasons, the Minister clearly understood the submission at [53(e)] (see [35](b) above): that BFM21’s placement on the sex offenders’ register was a factor that ameliorated the likelihood of his reoffending.
68 It is true that there is no express reference in the Minister’s reasons to the November submissions at [56] (see [35](c) above) in which the sentencing Judge’s remark is set out. However, this context is relevant:
(a) It was never submitted to the Minister that there was no risk that BFM21 would reoffend: the representation was that there was “a low and not unacceptable risk”;
(b) The sentencing Judge expressly addressed the fact that there was no medical or psychological evidence of any kind before her which supported an inference that BFM21’s mental functioning was impaired or diminished in any way at the time of the incident for which he was charged. That is consistent with the sentencing Judge understanding that she was dealing with an accused with paedophilic tendencies and it may be accepted that it is persons with such tendencies to which the protective purpose of the sex offenders’ register is addressed;
(c) There was expert medical opinion before the Minister which indicated that BFM21 did have a medically recognised condition, sexsomnia, which indicated that he was prone to sexual activity with a person where he slept, while he was asleep (therefore not conscious) and particularly when he was under stress and after heavy drinking. There is nothing in the Minister’s reasons to suggest that the Minister did not accept BFM21’s representative’s assertion (see R[60] at [26] above) that he had no sexual interest in children, including his biological daughter;
(d) The Minister therefore had before him a different risk profile from that presented to the sentencing Judge which affects the relevance of the sentencing Judge’s remark;
(e) The expert psychologist’s opinion was that BFM21 is “in the low risk category for sexual recidivism”. That is not a “no risk” assessment but it does suggest that Professor Freedman accepted that there were good prospects that BFM21 would not reoffend. The Minister accepted that assessment at R[62]. In my view, accepting that BFM21 is in the low risk category for sexual recidivism is consistent with the submission made by BFM21’s representative in the November submissions at [56] concerning the relevance of the sentencing Judge’s remark and the fact that half of his sentence was suspended: “In combination, we infer the sentencing judge considered [BFM21] had good prospects of avoiding reoffending”. That submission did not suggest that the Minister should take from the sentencing Judge’s remark that the Minister should accept that BFM21’s risk of recidivism was eliminated by his placement on the sex offenders’ register;
(f) The summary at R[12] is very high level. It does not address many issues specifically addressed in the Minister’s reasons, including the risk of recidivism. Nothing can be drawn from the Minister’s failure to mention the sentencing Judge’s remark at R[12]; and
(g) The Minister stated that he had taken into account the representations and submissions made to him (see R[11]). At R[70], the Minister expressly referred to giving weight to the factors that lowered BFM21’s risk of reoffending referred to in his representations. Having regard to the matters I have addressed in this “Consideration” of the first ground of review, there is no reason to disbelieve what the Minister said at R[11] and [70].
69 It was open to the Minister to understand the November submissions at [56] to emphasise the low risk that BFM21 posed to the Australian community due to the “protective measure” of his being placed on the sex offenders’ register, consistently with the November submissions at [53(e)] as discussed at R[63], and still not refer to the sentencing Judge’s remark in terms. I am satisfied that the Minister read and thought about all relevant submissions and evidence about BFM21’s risk of reoffending including that made in the November submissions at [56]. I do not accept that the failure to refer to the sentencing Judge’s remark bespeaks error. It is well established that, although the Minister had a statutory obligation to provide reasons for his decision, he was not required to refer to all elements of the evidence and submissions presented to him. The fact that, after evaluating all of the factors considered by the Minister, the Minister did not accept that the low risk of recidivism was “acceptable” goes to the merit of the evaluative decision that the Minister was ultimately called upon to make; I am not able to find that the Minister’s consideration of relevant submissions and evidence miscarried as claimed.
70 I reject the first ground of review.
Second ground
71 The second ground of review is that the Minister’s decision involved illogical or irrational reasoning or legal unreasonableness with the result that his decision is affected by jurisdictional error. The particulars are as follows:
(a) The proper discharge of the Minister’s jurisdiction under s 501CA of the Migration Act required him to exercise his discretion in a way that is legally reasonable and not to rely on illogical or irrational reasoning. That proposition is uncontroversial: see Plaintiff M1/2021 at [25] and the cases there cited;
(b) The Minister relied on illogical or irrational reasoning by:
(i) Accepting expert evidence that BFM21 suffered from a medical condition which carried the risk of “engaging in varying degrees of sexual activity while unconscious” when asleep (at R[62], see [26] above), and then relying on that medical condition as representing a risk of criminal “reoffending” when on no logical or rational basis could a risk of “unconscious” or unintentional behaviour amount to a risk of criminal “reoffending”;
(ii) Finding a risk that BFM21 might drink to excess and, if so, engage in further acts of unconscious sexual behaviour when asleep and, if there was a vulnerable female in the vicinity, thereby commit a criminal offence again (for instance, at R[65]). However, the Minister’s reasons provided no logical or rational basis for concluding there was any possibility of a vulnerable female being in BFM21’s vicinity when he was asleep or any possibility of any unconscious sexual behaviour amounting to a criminal offence; and
(c) The Minister’s illogical or irrational reasoning denied BFM21 a realistic possibility of a different outcome, because the overlooked representation was directly relevant to the primary adverse factor relied on by the Minister (namely, risk to and protection of the Australian community). I take the “overlooked representation” to be the November submissions at [56] which relied on the sentencing Judge’s remark that BFM21’s placement on the sex offender’s register was “very likely to limit interaction with children in the future and effectively eliminate any opportunities to reoffend”.
BFM21’s submissions
72 BFM21 relied on the Full Court’s decision in MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ) where the Full Court pointed out that a “decision might be shown to be affected by jurisdictional error if … there is no logical connection between the evidence and the inferences drawn … [or] there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion”. I do not understand the respondent to challenge those propositions.
73 BFM21 submitted that (at R[62] and R[65]) the Minister accepted Professor Freeman’s opinion that BFM21’s unconscious sexual activity only occurred where he slept. Nonetheless, the Minister went on to find (at R[65]) that he could not exclude the possibility that BFM21 might drink to excess, and if he did, that there would be a “vulnerable female in the vicinity” such that “his actions could amount to a criminal offence again”. The Minister went on (at R[70]) to conclude that, despite giving “weight to the factors that may lower the likelihood of [BFM21] reoffending” he “could not rule out the possibility that [BFM21] may reoffend in a similar manner, especially if he lapses into heavy drinking again or is under stress” (emphasis added).
74 BFM21 submitted that the Minister’s reasoning was logically flawed such that the Minister fell into jurisdictional error in forming the opinion required by s 501CA(4)(b)(ii) for the following two reasons.
75 First, the risk of reoffending aspect: BFM21 submitted that there was no basis for the Minister to assume that BFM21’s unconscious behaviours would amount to a criminal offence. BFM21 relied on the High Court’s decision in R v Falconer (1990) 171 CLR 30 and s 23 of Sch 1 of the Criminal Code Act 1899 (Qld) (Criminal Code) which provides as follows:
23 Intention—motive
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
(a) an act or omission that occurs independently of the exercise of the person’s will; or
(b) an event that—
(i) the person does not intend or foresee as a possible consequence; and
(ii) an ordinary person would not reasonably foresee as a possible consequence.
Note—
Parliament, in amending subsection (1)(b) of the Criminal Code and Other legislation Amendment Act 2011, did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.
(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
In other words, the only risk the Minister could not rule out was the risk of future episodes of sexsomnia, but on the Minister’s own finding that would not be a risk of “reoffending” since the behaviour was unconscious.
76 Second, the failure to evaluate likelihood aspect. BFM21 submitted that, in a related flaw of reasoning, the Minister accepted BFM21’s submissions about minimisation of the risk of reoffending yet still concluded that BFM21 presented an unacceptable risk of harm to the Australian community. He submitted that the finding of “unacceptable risk” (at R[77]) was premised on the concern that if a “vulnerable female” were to be “in the vicinity” at a time when BFM21 engaged in sexsomnia activity, BFM21 would “reoffend” (see R[70]). He said it was illogical for the Minister to rely on that reasoning without assessing the likelihood of a “vulnerable female” ever being in BFM21’s vicinity while he was sleeping and the Minister made no such assessment. The Minister had accepted Professor Freeman’s evidence that the relevant “vicinity” was in BFM21’s bed (see R[62]). He said the “vulnerable female” is presumably a child having regard to the “possibility that [BFM21] may reoffend in a similar manner” found at R[70] and the express reference to a child at R[72] (see [28] and [29] above).
77 BFM21 relies on the Full Court’s decision in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 (Muggeridge) at [55] (Charlesworth J with whom Flick and Perry JJ agreed) as follows:
Although the Minister was not required to evaluate the risk of Mr Muggeridge re-offending in any particular way, the Minister did in fact embark upon an evaluation of Mr Muggeridge’s prospects of re-offending in a way that was acutely fact dependent. The reasoning adopted by the Minister in this case logically required an assessment to be made of the likelihood that Mr Muggeridge would resume contact with an outlaw motorcycle club and so offend “in a similar fashion” and thus cause “great harm”. In light of the Minister's findings concerning Mr Muggeridge’s rehabilitation, his debilitating spinal injury and the lack of evidence of any affiliation with any outlaw motorcycle club since his return to Australia, the reasons do not provide any logical basis for concluding that there was a possibility that Mr Muggeridge would resume contact with such a club.
78 In oral submissions, counsel for BFM21 submitted that the Minister fell into “largely the same error” in this case. Counsel accepted that the Minister was not bound to embark on a consideration of risk, but said that once the Minister decided to do so, he must progress in a rational and logical way. He submitted there is no logical link between the finding of unacceptable risk and the evidence. There is speculation about a vulnerable female being in the vicinity (that is, in BFM21’s bed), but there is no assessment of what the chances of that were. The evidence was that BFM21 would go and live with his wife and step-daughter who was not a child (having reached the age of 18 years).
Respondent’s submissions
79 In relation to the risk of reoffending aspect of the claimed error, the respondent submitted as follows. First, the use of the expression “criminal offending” or “reoffending” in the Minister’s reasons was “evidently just the product of using imprecise language” within the concept discussed in Wu Shan Liang at 271-272. What the Minister was apparently concerned with was the risk of harm that might result to persons in the Australian community if BFM21 committed a similar act to that which he was convicted of, not whether, as a matter of law, BFM21 was criminally responsible for such an act.
80 Second, the respondent submitted that the Minister’s reasons reveal that he was plainly aware that BFM21’s activities during a sexsomnia episode may have the consequence of criminal responsibility not attaching. For example, at R[54] the Minister expressly considered whether or not, in light of the new information about BFM21’s sexsomnia condition, he could “go behind the verdict”. Similarly, at R[65] the Minister acknowledged that offending while the subject of that condition may “arguably reduce his culpability”. He also submitted that it is noteworthy that the Minister only ever suggested that, by re-engaging in similar conduct, BFM21’s actions “could” (not “would”) “amount to a criminal offence again”: R[65].
81 Third, the respondent submitted that it is not right to say that an automatism defence under s 23 of the Criminal Code would automatically apply if BFM21 reoffended while the subject of a sexsomnia episode. The respondent submitted that issue is far more complex than that:
(a) Under s 23 of the Criminal Code, a question of fact would arise as to whether or not the act committed during a sexsomnia episode was one that could truly be said to be performed “independently … of the exercise of … will”. Automatism requires a person to have “no control”: see R v Milloy [1993] 1 Qd R 298 at 301 (Thomas J). Diminished control (even substantial) will not suffice. While (in a lay sense and by analogy) it might be said that a person sleepwalking has no control, it is a question for expert evidence. In any particular case, such opinions may differ about issues such as the degree of unconsciousness and ability to control behaviour while in such a state. Even in R v Falconer, Deane and Dawson JJ expressly noted that sleepwalking may result in an automatism defence “in some instances”;
(b) There are apparently differing medical views on whether analogous conditions like sleepwalking may potentially give rise to an automatism defence (under s 23 of the Criminal Code) or an insanity defence (under s 27 of the Criminal Code): see, for instance Peter Ridgway, “Sleepwalking – Insanity or Automatism?” (1996) 3(1) Murdoch University Electronic Journal of Law 4; and
(c) Were BFM21’s sexsomnia state to be re-activated by drinking to excess (particularly where BFM21 knows this is a potential trigger for his sexsomnia), a real question would arise as to whether he could avoid criminal responsibility having regard to how “intoxication” is treated under s 28 of the Criminal Code.
82 Fourth, BFM21’s representative’s submissions pitched BFM21’s case in terms of his risk of “reoffending” or “recidivism”: see the November submissions at [45], [48], [51], [53(d)] and [56]-[57]. Neither Professor Freeman’s evidence nor BFM21’s submissions considered by the Minister suggested that if BFM21 committed a sexual assault while experiencing sexsomnia that could not give rise to criminal liability. Further, Professor Freeman’s evidence did not examine the degree of consciousness, control or criminality associated with BFM21’s sexsomnia condition, having regard to BFM21’s particular characteristics or otherwise.
83 The respondent submitted that there was no illogicality or irrationality in the Minister’s reasoning in relation to this aspect but even if there was, it is difficult to see it as being material or rising to the point of jurisdictional error for those four reasons.
84 In relation to the failure to evaluate likelihood aspect of the claimed error, the respondent submitted that:
(a) BFM21’s case to the Minister was never premised on him being at no risk of reoffending. Professor Freeman described BFM21 to be at “low risk of reoffending” (see R[62]), an opinion which the Minister accepted, and BFM21’s November submissions characterised that risk as “very low”. That was hardly surprising given that, even on BFM21’s own case, he was always going to face risk situations. For example, in his statutory declaration he said that he would be living with his step-daughter and her mother on his release from detention. In his “New Future Plan”, BFM21 accepted that there would be times where he would come into contact with young female children. There was no reason to think that BFM21’s risk profile was limited to young female children and it was apparent that – via his social circles – he would “come into contact with adult female children and adult females”. But even if it is limited to young females, the reasoning in R[65] was open to the Minister;
(b) Given his condition (and the evidence that BFM21 had engaged in sexual activities with his adult partners in the past during sexsomnia episodes), and his “problematic drinking history”, there was always going to be a risk that BFM21 might drink to excess and fall asleep in the “vicinity” of a “vulnerable female”. If that occurred, the risk of a sexsomnia episode occurring – and the vulnerable female being harmed – could not be ruled out. That is how the Minister reasoned at R[65] and [77] and it is difficult to see how that reasoning was not open to the Minister;
(c) The Minister specifically discussed how the possibility of reoffending might arise at R[65]. A “possibility” was enough; the Minister had no obligation to ascribe a likelihood of reoffending, but in any event that finding must be read in the context of R[62] and [71] where the Minister ascribes a “low” risk to that possibility. That reasoning was open to the Minister; and
(d) There is no reason why the Minister’s reasons ought to be read as not considering the possibility that BFM21’s wife might (in particular circumstances) be a vulnerable female.
85 The respondent submitted that, in those premises, BFM21’s case that the Minister was required to make a specific finding on the likelihood of BFM21 falling asleep in the vicinity of a vulnerable female is difficult to understand because:
(a) The Minister had no obligation to make any particular findings (see the cases cited at [44(c)] above);
(b) Against the background noted above, the Minister’s finding that BFM21 was a “low risk” of reoffending was inherently an evaluation which factored into account the likelihood of him falling asleep in the vicinity of a vulnerable female in a circumstance where he was susceptible to having a sexsomnia episode;
(c) The Minister had no duty to evaluate risk in a particular way or ascribe a particular characterisation to the quality of the risk (see Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [71] (Rangiah J, with whom North J agreed); Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41] (Rares, Flick and Perry JJ); BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82 at [44] (Collier, Murphy and Burley JJ)) or to quantify it (see AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [55] (Allsop CJ, Robertson and Griffiths JJ)); and
(d) It is difficult to know what more the Minister was expected to say on the question of risk. The assessment of risk in this case was an inherently difficult and speculative exercise that was not time specific and the Minister had to do as best he could on the broad and incomplete evidence before him. In this case, and as is noted above, the evidence (and submissions) before the Minister was clear that there was inevitably a risk (contrast Muggeridge); the question was just one as to the degree of risk involved, which the Minister considered.
BFM21’s submissions in reply
86 In relation to the respondent’s submission as to the risk of reoffending aspect of the claimed error, BFM21 submitted that:
(a) In relation to the respondent’s submission recorded at [79] above, there is no basis for the Court to infer that the Minister meant anything other than “criminal offending” and “reoffending” when he used those words. At R[58], the Minister expressly and specifically said that he was considering whether BFM21 “poses a risk to the Australian community through reoffending”. If the Minister intended to consider harmful conduct more broadly, he would have said so. BFM21 uses R[68] as an example. In oral submissions, counsel for BFM21 properly conceded that sexsomnia conduct, if it recurred, would involve an act which might satisfy the actus reus required for criminal conduct with essentially the same impact on the person on whom the act was done, but counsel said that it would not involve criminal conduct because there was no mens rea. Counsel pointed out that (at R[47]) the Minister restated the government’s policy to protect the Australian community from criminal conduct. There was no suggestion that the government or the Minister had a policy to take unintentional harm into account and rely on it to exclude non-citizens from residency by cancelling their visa or refusing to revoke a cancellation decision;
(b) In relation to the Minister’s submission recorded at [80] above, on any fair reading of the Minister’s reasons, it is clear that the Minister considered there was a possibility of a further episode of sexsomnia such that BFM21’s actions “could amount to a criminal offence again”: see R[65]. Read in context, “could” cannot reasonably be understood as suggesting that the Minister was considering the intricacies of criminal responsibility now sought to be relied on by the Minister. There is nothing in the Minister’s reasons to suggest that the Minister identified some risk of deliberate conduct that would amount to a criminal offence; and
(c) The respondent’s written submissions at [42] to [45] (which are included in the submissions recorded at [81]-[82] above), above suggest reasoning that the Minister could have employed but did not in fact adopt. The respondent cannot now fill the gap in his reasoning.
87 In relation to the respondent’s submissions concerning the failure to evaluate likelihood aspect of the claimed error (see [84] above), BFM21 submitted that the respondent overlooked the important distinction between the assessment of the level of risk (which the Minister accepted was low) and the acceptability or otherwise of that risk (emphasis in submission). BFM21 submitted that the Minister’s finding of an unacceptable risk (see R[77]) was premised on a concern expressed at R[65] that if a “vulnerable female” were to be “in the vicinity” at a time when BFM21 engaged in sexsomnia behaviours, there could be a criminal offence. However, the Minister relied on that reasoning without assessing the likelihood of a “vulnerable female” being “in the vicinity” of BFM21 while he was sleeping. That was an assessment the Minister never made, and it is beside the point for the respondent to suggest that there was material upon which the Minister could have made that assessment.
Consideration
88 In CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 (CKL21) at [64]-[68], Moshinsky, O’Bryan and Cheeseman JJ usefully summarised the principles relevant to the determination of the second ground as follows:
64 The Minister’s power to revoke the cancellation of a visa under s 501CA(4) is discretionary: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 at [36] per Nettle, Gordon and Edelman JJ; Viane at [12]. There is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably: Li at [24]-[29] per French CJ, [63]-[68] per Hayne, Kiefel and Bell JJ and at [88]-[92] per Gageler J. A discretionary decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision and also by reference to the outcome: Li at [68] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J. However, where reasons are given for the exercise of a discretionary power, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [44]-[47]. While (absent clear words to the contrary) there is a presumption that the legislature intended all statutory discretions and powers to be exercised reasonably, one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural: Stretton at [71] per Griffiths J (with whom Allsop CJ and Wigney J agreed). In the present case, the Minister’s power to revoke the cancellation of a visa under s 501CA(4) is substantive in nature.
65 While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ.
66 Applying the foregoing principles, the Court has previously found that a decision-maker, exercising power under s 501CA(4) or a power to cancel a visa, is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious. In BMX15, while the Minister found that the likelihood of reoffending was low (a matter weighing in the applicant’s favour), the gravity of possible harm was high (a matter that weighed against the applicant) (at [28]). Justice Bromberg observed (at [29]) that:
That combination of likelihood and gravity (which I will call “overall risk”) was weighed against other relevant factors. The Minister considered that the overall risk outweighed those other factors. That was not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that (of course) does not suffice to demonstrate that this decision was legally unreasonable. This decision was not “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”: cf AZAFQ at [58]. …
67 Similarly, in Stretton, Allsop CJ observed at [16]-[17] that:
[16] … The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community …
[17] It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community’s behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterized as legally unreasonable – as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power …
68 That is not to suggest, however, that a decision-maker’s findings with respect to the risk to the Australian community of an applicant reoffending is beyond judicial review. In Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 (Muggeridge), the Full Court concluded that the decision of the Minister was legally unreasonable because the reasons of the Minister provided no logical basis for concluding that there was a possibility that the appellant would resume contact with an outlaw motorcycle club, which was the foundation for the Minister’s finding that there was a risk of the appellant reoffending in a similar manner to the prior offending and thereby causing harm to the community (at [55] per Charlesworth J, Flick and Perry JJ agreeing). In Ogbonna, Thawley J concluded that the Minister’s finding that there was a likelihood, albeit low, of the applicant reoffending was not formed reasonably because it was not supported by probative material (at [47] and [49]). In Splendido, the Full Court concluded that the evidence before the Minister did not afford a probative basis for the Minister’s finding that there was a likelihood of the applicant reoffending (at [50]-[51] and [111] per Mortimer J, with whom Moshinsky J agreed at [113], and at [132] per Wheelahan J). So too in Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 419 (Logan), Colvin J found that the Minister’s conclusion that Ms Logan represented an unacceptable risk of harm rested upon no probative material and was not reasoned logically (at [42]). Justice Colvin explained that the fundamental difficulty with the reasoning was that it contained no finding by reference to current circumstances as to whether Ms Logan posed a risk of reoffending and the evidence before the Minister did not identify such a risk (at [43]).
Risk of reoffending aspect
89 The proposition in [71(b)(i)] above (the risk of reoffending aspect) must be rejected for the following reasons.
90 In my view, what the Minister said at R[47] and [58] indicates that his focus was on the risk of harm to the Australian community arising from criminal activity. Having said that, I accept that the Minister’s reasons at R[58] and [65] recognised that BFM21’s criminal culpability for sexsomnia activity “arguably” might be reduced because the activity occurred while BFM21 was asleep but also said that future sexsomnia activity “could” amount to a criminal offence. I accept that it would be going too far to say that those findings contemplated the availability to BFM21 of either an automatism or insanity defence under ss 23 or 27 of the Criminal Code which would be complete defences. That outcome is unsurprising since neither of those defences was raised before the sentencing Judge and, despite the availability of Professor Freeman’s report, neither BFM21’s representations to the Minister nor Professor Freeman’s report raised the possibility of the availability of those defences or the likelihood of their success.
91 Representations to the Minister on BFM21’s behalf, including Professor Freeman’s evidence, were in terms of his low risk (or, according to the November submissions, “very low risk”) of “reoffending” or “recidivism”. That may reflect the focus of Direction 79 in guiding the submissions, but what is relevant is that the Minister’s reasons responded to those representations and the evidence contained in Professor Freeman’s report as far as they went. If there is a “gap” as suggested by BFM21 (see [86(c)] above) it is one that BFM21 needed to fill in his representations so that the Minister was in a position to take arguments concerning the possible operation of ss 23 or 27 of the Criminal Code into account in making his decision.
92 Further, neither the representations made on BFM21’s behalf nor Professor Freeman’s report addressed how the availability of those defences or their success would relate to the Government’s policy stated at R[47] and Direction 79 of protecting the Australian community from harm arising from criminal activity by non-citizens. As accepted by BFM21’s counsel in oral submissions, the availability of those defences does not mitigate the impact on the Australian community of conduct that constitutes the actus reus of a serious criminal offence.
93 Most importantly, BFM21’s submissions to this Court assume that, should BFM21 engage in future sexsomnia activity, a defence under s 23 of the Criminal Code would certainly be made out because the Minister accepted that BFM21 was asleep and therefore unconscious when the activity occurred. However, it is far from certain that the defence would be advanced in relation to any future conduct or that it would necessarily succeed for the reasons given by the respondent in submissions to this Court summarised at [81] and [82] above.
Failure to evaluate likelihood
94 The proposition in [71(b)(ii)] above (the failure to evaluate likelihood aspect) must be rejected for the following reasons.
95 It is necessary first to consider the use of the terms “vulnerable female” and “reoffend in a similar fashion” in a number of paragraphs of the Minister’s reasons.
96 On the evidence before the Minister, the constituent elements of BFM21’s sexsomnia conduct were being under stress and binge drinking and that there was a female where he fell asleep. The age of the female was not a constituent element, since the evidence was that both of BFM21’s wives and his daughter who was a child all said that he engaged in that conduct and BFM21 says that he has no sexual interest in children. While, factually, he shared a bed with his wives and daughter when known sexsomnia activity occurred, the necessary element was proximity of the female to where he fell asleep, that is, he was in the vicinity of the female: see R[60] and [62]
97 The Minister’s use (at R[63]-[71]) of the terms “vulnerable female” and “reoffend in a similar manner” (or variants of those terms) encompassed sexsomnia activity involving a female (whether adult or child) where BFM21 falls asleep in the “vicinity” of the female. I will refer to this as the “wider meaning” of those terms.
98 A difficulty arises because of the terms of R[72], where the Minister finds that were BFM21 to reoffend “in a similar manner involving sexual offending against a child”, it could “result in serious physical and psychological harm” (emphasis added). That paragraph is specific both as to a child as victim of the offending and the nature of the possible harm.
99 At R[75], the Minister gave weight to the serious nature of the crime of which BFM21 was convicted which the Minister said “was of a sexual nature, and involved a vulnerable member of the community, that being a minor” (emphasis added). This appears to pick up on the concepts in Direction 79 as follows:
6.3 Principles
[…]
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
…
9.1 Protection of the Australian Community
…
9.1.1. Nature and Seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.
…
100 Then at R[76], the Minister made a further finding that “the Australian community could be exposed to significant harm should [BFM21] reoffend in a similar fashion” (emphasis added), going on to say that he “could not rule out the possibility of further offending by [BFM21]”. R[76] reverts to words of importing the wider meaning.
101 On balance and reading the Minister’s reasons fairly and as a whole, it is my view that the Minister’s focus was the wider meaning of “vulnerable female” and “reoffend in a similar manner” and this reasoning informed the evaluative finding at R[77] that “[BFM21] represents an unacceptable risk of harm to the Australian community”. In this regard, R[77] picks up on the finding at R[70] that, after giving weight to the factors that lowered the likelihood of BFM21 reoffending, including the preventive strategies he has taken towards rehabilitation, his plans for the future, his supportive family and the low likelihood of reoffending, the Minister “could not rule out the possibility that [BFM21] may reoffend in a similar manner, especially if he lapses into heavy drinking again or is under stress”. That finding was, in my view, within the Minister’s “area of decisional freedom” in which minds might reasonably differ: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7] (Allsop CJ).
102 There is no lack of logic nor is there irrationality in the Minister finding that he could not rule out the possibility that BFM21 may reoffend in a similar fashion (in the wider meaning, but inclusive of the possibility of conduct involving a child) in light of:
(a) Professor Freeman’s report concerning the nature of BFM21’s diagnosed condition of “sexsomnia” and its triggers. The risk circumstances presented by BFM21 can be distinguished from those under consideration in Muggeridge and the other cases mentioned in CKL21 at [68]. Professor Freeman’s evidence indicates that the risk of further sexsomnia episodes will be ongoing, but may be mitigated and managed through a series of controls that BFM21 had introduced into his life to limit the possibility of risk circumstances arising leading to a “low risk” of recidivism;
(b) The evidence that past episodes were triggered by binge drinking and, in the instance for which he was convicted, a stressful life crisis, being the breakup of BFM21’s first marriage. No one’s best efforts can, with certainty, ensure that there would be no further life crises or that mitigation strategies will be sufficient to address actions arising from stress induced by them. Further, where a trigger is binge drinking it is relevant that BFM21’s evidence was not that he would forego drinking in the future, it was that he now only drank less beer; and
(c) The fact that neither the November submissions nor Professor Freeman suggest that there was no risk of further sexsomnia episodes, despite the New Future Plan and the other protective measures addressed in the November submissions.
In my view, it was unnecessary for the Minister to embark on any larger evaluation of the likelihood of BFM21 “reoffending” in “a similar manner” before making an evaluative determination of whether the risk he represented to the Australian community was “acceptable”.
103 For completeness, I note that neither BFM21 nor the Minister provided written submissions concerning the second ground notwithstanding [71(c)] above, being the so-called “overlooked representation” concerning the sentencing Judge’s remark, nor was it obviously addressed in counsels’ oral submissions. However, I am not satisfied that the Minister overlooked the representation actually made in the November submissions at [56]. I am also not satisfied that the sentencing Judge’s opinion about BFM21’s risk of reoffending against a child in light of his admission to the sex offenders’ register was relevant in light of BFM21’s different risk profile having regard to the difference in the evidence before the sentencing Judge and the Minister.
Disposition
104 The application for judicial review should be dismissed with costs.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell. |
Associate:
