Federal Court of Australia

RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 254

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application for review of the decision by the second respondent, as amended, be dismissed.

2.    The applicant pay the first respondents costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, who has been given the pseudonym RDYQ, is a citizen of the United States of America and Canada. He has resided in Australia since December 2013, most recently pursuant to a partner visa. In September 2019, however, that visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) following the applicant’s conviction of serious offences in respect of which he was sentenced to imprisonment. A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs subsequently declined to revoke the cancellation pursuant to s 501CA(4) of the Migration Act. The applicant applied for a review of the delegate’s decision in the Administrative Appeals Tribunal. That application was unsuccessful. The Tribunal affirmed the delegate’s decision, concluding that it was not satisfied that there was “another reason” to revoke the cancellation. The applicant applied to this Court for judicial review of the Tribunal’s decision.

2    The applicant’s primary review grounds centred around his contention that the Tribunal failed to have regard to, cumulatively, the nature of harm to individuals or the Australian community should he engage in further criminal or other serious conduct and the likelihood of him engaging in further criminal or other serious conduct. The applicant contended that the Tribunal thereby failed to comply with Direction No. 90, being a direction made under s 499 of the Migration Act. The applicant otherwise contended that the Tribunal made a finding that was unsupported by any evidence and had failed to have regard to, or had dismissed, some of his submissions. The dismissal of one of his submissions was said to amount to a denial of procedural fairness.

3    For the reasons that follow, none of the applicant’s review grounds are meritorious and his application must be dismissed with costs.

Cancellation of the applicant’s visa

4    The applicant arrived in Australia in December 2013 as the holder of a Work and Holiday (Class US) (Subclass 462) visa. On 15 April 2015 he married an Australian citizen and in 2017 he was granted a Partner (Class BS) (Subclass 801) visa.

5    On 19 March 2018, officers of the Queensland Police Service executed a search warrant at the applicant’s home and located a significant quantity of child exploitation material on electronic devices. The applicant was charged with two offences: first, the offence of using a carriage service to transmit, make available, publish, distribute, advertise or promote child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (Schedule to the Criminal Code Act 1994 (Cth)); and second, the offence of possessing child exploitation material contrary to s 228D of the Criminal Code (Qld) (Schedule 1 to the Criminal Code Act 1899 (Qld)).

6    The applicant pleaded guilty to those two charges and was in due course convicted of the offences by a judge in the District Court of Queensland. He was sentenced to imprisonment for 12 months in respect of the first offence, though he was to be released, upon giving security by way of recognisance, after four months’ imprisonment, subject to a condition that he be of good behaviour for two years. In respect of the second offence, the applicant was sentenced to two years’ imprisonment, though that sentence was suspended after four months’ imprisonment, subject to the condition that he be of good behaviour for two years.

7    Given the nature of some of the arguments pursued by the applicant in support of this application, it is relevant to reproduce some of the sentencing judge’s remarks on sentence. As for the nature and seriousness of the offences, the sentencing judge remarked:

… I should put on the record that there was a total of 5559 images and 123 movies located on the device. Police undertook a categorisation of these images, and, by reference to what has been referred to as the Oliver scale, it was determined that there were just over 4600 images and nine movies in category 1, 28 images and 10 movies in category 2, 200 images and four movies in category 3. But, particularly disturbingly, 225 images and 96 movies in category 4, and 225 images and four movies in category 5.

It is noted that 100 out of the 123 movies involved category 4 material or higher. It has to be said that the number of 5559 images and 123 movies, it is sad to say, tends towards the lower end of what often comes before this court. That said, a significant proportion of that number fall within those categories four and five to which I have referred. It is agreed that the movies located on the device primarily depict adult males engaging in penetrative sexual intercourse with pre-pubescent girls, most of whom appeared under the age 10 and, even more disturbingly, many were infants. And, indeed, it would appear that the majority of the videos depicted girls aged towards the lower end, and, indeed, from very early years of infancy up to 10 years of age.

I do not intend to describe in detail the vile nature of a number of the images and videos that are set out in the agreed schedule of facts, suffice to say that they involved prepubescent girls being tied up, raped orally and vaginally by adult males, and being tortured by the use of hot wax and other items. There are also images involving penetrative sex with animals and other degrading activities involving prepubescent young girls. The images clearly showed a number of these young victims being dealt with whilst in a clearly distressed state. It was identified that the majority, if not all of the material, came from international sites, including Southeast Asia and Eastern Europe.

8    In relation to rehabilitation, the sentencing judge stated:

… Also, of course, one has to have regard to the prospects of rehabilitation and the potential for you to behave in an acceptable way within the community. There does appear to be some genuine prospects of rehabilitation in your part. Insofar as your antecedents and age are concerned, you have no prior criminal history, you are well educated, you have worked and contributed to the community in a way that has, but for this offending, would normally put you into the category of a genuine and meaningful member of our community. I accept that you are remorseful and ashamed for what you have done. And I have referred to the medical material. And there is no evidence to suggest that you are a threat, that is, a direct threat to any child under the age of 16 actually living within the community.

9    On 10 September 2019, the Minister cancelled the applicant’s then current visa pursuant to s 501(3A) of the Migration Act, which relevantly provides as follows:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10    On 4 October 2019, the applicant made representations to the Minister, through his representative, seeking revocation of the cancellation of his visa pursuant to s 501CA(4) of the Migration Act, which provides as follows:

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

11    On 26 May 2022, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, to not revoke the cancellation of the applicant’s visa. It is unnecessary, for present purposes, to detail the reasons given by the delegate, save as to note that the delegate was not satisfied that there was “another reason” why the cancellation should be revoked. There was no dispute that the applicant did not pass the character test.

12    At the time he commenced this proceeding, the applicant was 39 years old. He has a son who was born on 15 October 2018. He was divorced from his wife on 1 July 2022. He has had no relationship with his son since January 2020.

Merits Review by the Tribunal

13    On 1 June 2022, the applicant applied to the Tribunal for review of the delegate’s decision to not revoke the cancellation of his visa.

14    On 22 August 2022, the Tribunal affirmed the delegate’s decision.

15    There was again no dispute that the applicant did not pass the character test. The central issue for the Tribunal was whether there was another reason to revoke the visa cancellation. The Tribunal was not satisfied that there was another reason to revoke the cancellation.

16    Before briefly addressing the Tribunal’s reasons why it was not satisfied that there was another reason to revoke the visa cancellation, it is necessary to consider those parts of Direction No. 90 which are relevant to the applicant’s review grounds.

Direction No. 90

17    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).

18    Direction No. 90 was made by the then Minister on 8 March 2021. It applies to a delegate of the Minister and the Tribunal when making a decision under, relevantly, s 501CA of the Migration Act.

19    Paragraph 8 of Direction No. 90 provides that the primary considerations that a decision maker must take into account are: the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and the expectations of the Australian community.

20    Paragraph 8.1 of Direction No. 90 addresses the first primary consideration, protection of the Australian community. It is in the following terms:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

a)     the nature and seriousness of the non-citizen’s conduct to date; and

b)     the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

21    Paragraph 8.1.1 addresses the consideration in paragraph 8.1(2)(a), the nature and seriousness of the non-citizen’s conduct to date. It is relevantly in the following terms:

(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 the following:

a)     without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i)     violent and/or sexual crimes;

(ii)     crimes of a violent nature against women or children,        regardless of the sentence imposed;

(iii)     acts of family violence, regardless of whether there is a        conviction for an offence or a sentence imposed;

b)     without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i)    …

(ii)    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;

(iii)    …

(iv)    …

c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

…

22    Paragraph 8.1.2 addresses the consideration in paragraph 8.1(2)(b), the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. It states as follows:

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non-citizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken),

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

23    Paragraph 8.3 addresses the primary consideration of the best interests of minor children in Australia affected by the decision. It is unnecessary, for the purposes of this application, to consider paragraph 8.3 as it is not the subject of any review ground.

24    Paragraph 8.4 addresses the primary consideration of the expectations of the Australian community. It relevantly states as follows:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)     …

(b)    …

(c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

…

25    Paragraph 9 deals with other considerations that a decision-maker must take into account. The other considerations are: international non-refoulement obligations; the extent of impediments if removed; the impact on victims; and links to the Australian community. The other considerations are expanded on in paragraphs 9.1 to 9.4, though it is unnecessary to go to the detail in those paragraphs.

26    Paragraph 7 provides, among other things, that the primary considerations should generally be given greater weight than the other considerations.

The Tribunal’s reasons in summary

27    The Tribunal gave detailed reasons for its decision: Decision and Reasons for Decision dated 22 August 2022 (reasons or R). It will be necessary to consider some parts of the Tribunal’s reasons in more detail when considering some of the applicant’s grounds of review. It suffices at this stage to note the following.

28    First, in relation to the primary consideration of the protection of the Australian community, the Tribunal addressed paragraph 8.1.1 of Direction No. 90 and found that the “offence of possessing child exploitation material is viewed very seriously by the Australian Government and the Australian community as it falls within paragraph 8.1.1(1)(a)(i) of Direction 90” and “was also in relation to children who are vulnerable as described in paragraph 8.1.1(1)(b)(ii)”: R[31].

29    Second, the Tribunal addressed paragraph 8.1.2(1) of Direction No. 90 and found that the “Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable”: R[35].

30    Third, the Tribunal addressed paragraph 8.1.2(2)(a) of Direction No. 90 and found, in relation to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct, that “[i]f the applicant reoffended, incalculable physical and/or psychological harm could be suffered by vulnerable children in Australia who may be exploited for the purpose of generating the material sought by the applicant”: R[37].

31    Fourth, the Tribunal gave detailed consideration to the material that was before it which was relevant to the assessment of the likelihood of the applicant reoffending or engaging in further criminal or serious conduct: R[39]-[100]. It will be necessary to give more attention to this part of the Tribunal’s reasons in addressing the applicant’s review grounds 1, 2 and 4. It suffices at this point to note that, while the material that was before the Tribunal in respect of this issue clearly supported a finding that there was a risk, albeit a low risk, that the applicant might offend, the Tribunal did not make any explicit or express finding concerning the likelihood that the applicant might engage in further criminal conduct.

32    Fifth, the Tribunal concluded, in respect of the primary consideration of the protection of the Australian community, that that consideration “weighs heavily against revocation of the decision to cancel the applicant’s visa”: R[101].

33    Sixth, the Tribunal concluded that “on balance” the best interests of the applicant’s minor child “weigh in favour of revocation of the visa cancellation decision”: R[112].

34    Seventh, the Tribunal found that, in accordance with paragraph 8.4(2)(c) of Direction No. 90, the “Australian community expects that the Australian Government should cancel the applicant’s visa because of the commission of a serious crime against children, that is, a crime of a sexual nature”: R[118]. The Tribunal concluded that the expectations of the Australian community “weighs heavily against the revocation of the visa cancellation decision”: R[120].

35    Eighth, in relation to the “other considerations”, the Tribunal gave no weight to the applicant’s contentions concerning international non-refoulement obligations: R[130]. The applicant’s review application does not raise any issue concerning that finding. In relation to the extent of the impediments if the Applicant was to be removed from Australia, the Tribunal considered the applicant’s claims concerning the effect that his removal would have on his psychological condition and the support that he receives in Australia as compared with the support he would receive in the United States or Canada. The Tribunal concluded that the impediments consideration “weighs slightly in favour of revocation of the visa cancellation decision”: R[142]. Similarly, in respect of the applicant’s links to Australia, the Tribunal considered the material before it which related to the applicant’s relationship with his former wife and son, his other friends in Australia and his contribution to the Australian community and concluded that this consideration “weighs slightly in favour of revoking the visa cancellation decision”: R[149].

36    The Tribunal concluded as follows (at R[151]-[152]):

The primary considerations protection of the Australian community and the expectations of the Australian community which weigh in favour of not revoking the decision to cancel the applicant’s visa outweigh the primary consideration the best interests of the child and the other considerations, international non-refoulement obligations, the extent of impediments if removed from Australia to his home country and links to the Australian community, which weigh in favour of revoking the decision to cancel the applicant’s visa.

There is not another reason why the decision to cancel the applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

37    The Tribunal accordingly affirmed the delegate’s decision.

The applicant’s grounds of review in summary

38    The applicant pursued seven grounds of review of the Tribunal’s decision.

39    Grounds 1, 2 and 4 may conveniently be considered together. They each related to the Tribunal’s findings concerning the primary consideration of the protection of the Australian community from criminal or other serious conduct. The applicant contended that, while the Tribunal had regard to the nature and seriousness of the applicant’s conduct (paragraphs 8.1(2)(a) and 8.1.1 of Direction No. 90) in considering the risk to the Australian community should the applicant commit further offences (paragraph 8.1(2)(b) of Direction No. 90), and to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct (paragraph 8.1.2(2)(a) of Direction No. 90), the Tribunal did not have regard to the likelihood of the applicant engaging in further criminal or other serious conduct as required by paragraph 8.1.2(2)(b) of Direction No. 90.

40    The applicant submitted that the Tribunal “appeared to foreclose” on the assessment required by paragraph 8.1.2(2)(b) by finding (at R[38]) that “this is a case where the nature of harm is so serious that any risk of reoffending is unacceptable”. In the applicant’s submission, the Tribunal failed to evaluate the likelihood of the applicant reoffending as required by paragraph 8.1.2(2)(b) and thereby failed to comply with Direction No. 90 as required by s 499 of the Migration Act. The applicant also claimed that, to the extent that the Tribunal did evaluate the likelihood of the applicant reoffending, its decision was legally unreasonable.

41    Ground 3 of the applicant’s application challenged the Tribunal’s finding (at R[37]) that, if the applicant did reoffend, “incalculable physical and/or psychological harm could be suffered by vulnerable children in Australia”. The applicant contended that there was no evidence capable of supporting that finding. He also contended that there was evidence which was contrary to that finding.

42    Grounds 5 and 6 of the applicant’s application both involved a contention that the Tribunal failed to have regard to representations made by the applicant in support of revocation. Ground 5 related to a representation said to have been made in respect of the applicant’s poor mental health. The applicant claimed that the Tribunal failed to consider that representation and misunderstood the expert evidence relating to the applicant’s mental health. Ground 6 related to evidence said to have been submitted by the applicant concerning a “business plan” to “give back to the community”. That evidence was said to be relevant to the expectations of the Australian community.

43    Ground 7 of the applicant’s application was that the Tribunal denied the applicant procedural fairness by dismissing a submission he made based on a comparison between his case and another case decided by the Tribunal.

Grounds 1, 2 and 4 – did the Tribunal fail to have regard to the likelihood of the applicant reoffending?

44    The Tribunal did not clearly or explicitly refer to the requirement, pursuant to paragraph 8.1.2(2)(b) of Direction No. 90, to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. Nor did the Tribunal make any clear or express finding concerning the likelihood of the applicant engaging in further criminal or other serious conduct. It does not, however, follow that the Tribunal did not “have regard to” that consideration, or “give consideration to” the risk to the Australian community should the applicant commit further offences, as required by paragraph 8.1.2(2)(b) and 8.1(2)(b) respectively. Indeed, when the Tribunal’s reasons are read fairly, and in the context of both the material that was before it and the parties’ respective contentions, it is readily apparent that the Tribunal proceeded on the basis that there was a risk, albeit a low risk, that the applicant might reoffend.

45    The first point to emphasise in respect of this issue is that it was effectively common ground between the parties that there was a low risk that the applicant might reoffend. The applicant did not contend, nor could he reasonably have contended having regard to the evidence, that there was no risk that he might reoffend. The applicant also did not dispute the delegate’s finding, or the Minister’s contention, that there was a risk that he might reoffend.

46    The delegate found that there was a “likelihood, albeit low, that [the applicant] will reoffend”: see [68] of the delegate’s Statement of Reasons. In his Statement of Facts, Issues and Contentions in the Tribunal, the applicant referred to, but did not directly dispute or cavil with that finding by the delegate. The Minister, in his Statement of Facts, Issues and Contentions in the Tribunal, contended (at paragraphs [21] and [22]) that “there remains an ongoing and unacceptable risk of the applicant reoffending”. In a document that the applicant provided to the Tribunal which, among other things, responded to the Minister’s contentions, the applicant did not directly dispute the Minister’s contention concerning the risk of him reoffending. He merely pointed to the sentencing judge’s finding that there was no evidence to suggest that he was a “direct threat to any child under the age of 16 actually living within the community” and the fact that “none of the psychologists or GPs” had assessed him to be “more than a low risk” to himself and others.

47    Perhaps more significantly, as the Tribunal recorded in its reasons (R[43]), during the Tribunal hearing the applicant conceded that it was “not possible to say 100% that he will not re-offend but he does not believe that he will”. That concession was entirely consistent with a handwritten letter that the applicant sent to the Minister’s department in which he stated: “I wish that it were possible to say that there is no risk” but “the risk is very low”.

48    It was, in all circumstances, open to the Tribunal to proceed on the basis that it was essentially common ground that there was a risk, albeit a low risk, that the applicant might reoffend.

49    The second point to emphasise is that the evidence that was before the Tribunal which bore on the likelihood that the applicant would reoffend unequivocally supported a finding that there was a risk, albeit a low risk, that the applicant might reoffend. The Tribunal addressed that evidence at some length in its reasons. Over 60 paragraphs and 13 pages of the Tribunal’s reasons was devoted to that topic. The key points which emerge from the Tribunal’s analysis of the evidence are as follows.

50    First, one of the psychiatrists who gave evidence at the sentence proceedings, who is identified in the Tribunal’s reasons as Dr GA, concluded that the applicant’s risks of reoffending were “generally low”. Dr GA’s “clinical assessment” was that the applicant was “at low risk of reoffending, especially given appropriate supervisory frameworks and treatment” and that on a “standard risk assessment instrument as SF-20, he would score low risk of reoffending”: R[74]. Dr GA also opined that the applicant’s “risk of offending with children physically was very small but the risk of reusing the internet existed but was not large”: R[75]. Dr GA also concluded that the applicant required treatment for his sexual deviance: R[89]. The Tribunal found the analysis of Dr GA to be “compelling”: R[89]. The Tribunal also noted that, while Dr GA had considered that the support provided by the applicant’s wife was relevant to the low risk of him reoffending, the applicant is now divorced from his wife and she is no longer supporting him: R[92].

51    Second, a clinical nurse consultant who practiced in the area of forensic mental health, who was identified in the Tribunal’s reasons as Mr K, conducted a psychiatric assessment of the applicant. He concluded that there was a “relatively low risk of reoffending”: R[77] and [82].

52    Third, the Tribunal noted that the applicant “had not explored or been treated for his sexual deviance which was longstanding”: R[94]. The Tribunal also considered it to be relevant that the periods of the applicant’s suspended sentence and good behaviour bond had expired and that the applicant was not subject to parole. In those circumstances, it was “not apparent from the evidence how the risks in the community can be managed by limiting [the applicant’s] opportunities to have unfettered access to the internet as Mr K mentioned or how appropriate supervisory frameworks would be established, as Dr GA mentioned”: R[100].

53    Fourth, while there was a good deal of other medical evidence before the Tribunal concerning whether the applicant had symptoms of autism, or suffered from Noonan’s Syndrome or other adjustment or development disorders, it would be fair to say that that medical evidence was either equivocal or did not directly bear on the issue of the applicant’s risk of reoffending. It certainly did not suggest, contrary to the opinions expressed by Dr GA and Mr K, that there was no risk that the applicant would reoffend.

54    It would, in all the circumstances, have been preferable for the Tribunal to explicitly refer to the requirement, under paragraph 8.1.2(2)(b) of Direction No. 90, to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. It would also have been preferable for the Tribunal to make a clear and express finding concerning the likelihood of the applicant engaging in further criminal or other serious conduct. That said, the requirement under paragraph 8.1.2(2)(b) of Direction No. 90 is not that the Tribunal make an express finding concerning the likelihood of the non-citizen engaging in further criminal or other serious conduct. The requirement is that the Tribunal “have regard to” that consideration.

55    In all the circumstances, it is not possible to conclude that the Tribunal did not “have regard to” the likelihood of the applicant engaging in further criminal or other serious conduct. The Tribunal addressed the evidence concerning that issue at some length in its reasons. Even if the Tribunal was required to make a finding in that regard, a fair and contextual reading of the Tribunal’s reasons indicates that the Tribunal effectively found that there was a risk, albeit a low risk, of the applicant reoffending. It should be emphasised in that regard that the Tribunal’s reasons should not be read “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6; quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456.

56    It should also be noted, in this context, that the applicant’s reliance on the decision in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 was misplaced in light of the later decision in Moana v Minister for Immigration and Broder Protection (2015) FCR 367; [2015] FCAFC 54 at [3]-[10] (Jessup J) and [68]-[74] (Rangiah J with whom North J agreed).

57    The applicant pointed to the fact that the requirement in paragraph 8.1.2(2) of Direction No. 90 is that the decision-maker “cumulatively” have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in that conduct. In the applicant’s submission, the Tribunal did not carry out that cumulative assessment. That contention is again not supported by a fair reading of the Tribunal’s reasons. The Tribunal clearly found that the nature of the harm to individuals or the Australian community should the applicant reoffend was serious or, in the Tribunal’s words “incalculable”: R[37]. The Tribunal also effectively found or proceeded on the basis that there was a risk, albeit a low risk, that the applicant might reoffend. As the applicant noted, the Tribunal also accepted the Minister’s contention, in terms of paragraph 8.1.2(1) of Direction No. 90, that this was a “case where the nature of harm is so serious that any risk of reoffending is unacceptable”: R[38]. It was clearly on that basis that the Tribunal concluded that the protection of the Australian community weighed heavily against revocation of the cancellation of the applicant’s visa: R[101]. That effectively amounted to a cumulative assessment as required by paragraph 8.1.2(2) of Direction No. 90.

58    As for the applicant’s other submissions in support of grounds 1, 2 and 4, for the reasons already given, it cannot be accepted that the Tribunal “appeared to foreclose” on the assessment required by paragraph 8.1.2(2)(b) of Direction No. 90 when it found (at R[38]) that this was a case where “the nature of harm is so serious that any risk of reoffending is unacceptable”. The Tribunal had regard to the evidence concerning the likelihood of the applicant reoffending and effectively found that there was a low risk of reoffending. That was, in any event, common ground. The applicant never contended that there was no risk that he might reoffend. Nor was there any evidence capable of demonstrating that there was no risk of reoffending. The preceding summary of the Tribunal’s consideration of the evidence relevant to the issue of the risk of the applicant reoffending also puts paid to the applicant’s submission that the evidence “could not rationally point to a likelihood of reoffending”. The applicant’s contention that the Tribunal’s decision was unreasonable on that basis therefore has no merit. The evidence was clearly capable of supporting a finding that there was a risk, albeit a low risk, that the applicant might reoffend.

59    The applicant’s review grounds 1, 2 and 4 have not been made out. The Tribunal did not err as alleged in those grounds.

Ground 3 – was the finding that harm could be suffered by vulnerable children in Australia if the applicant reoffended unsupported by evidence?

60    As adverted to earlier, ground 3 challenges the Tribunal’s finding (at R[37]) that if the applicant reoffended “incalculable physical and/or psychological harm could be suffered by vulnerable children in Australia who may be exploited for the purpose of generating the material sought by the applicant”. The applicant contended that there was no evidence before the Tribunal that was capable of supporting that finding. The applicant also contended that there was evidence which was contrary to the finding. That evidence was said to be: the finding of the sentencing judge that “the majority, if not all of the material, came from international sites, including South East Asia and Eastern Europe”; the statement by the sentencing judge that there was “no evidence to suggest that [the applicant was] a threat, that is, a direct threat to any child under the age of 16 actually living within the community”; and the evidence of Dr GA that the applicant’s “risk of offending with children physically was very small but the risk of reusing the internet existed but was not large”.

61    It may readily be accepted that the Tribunal’s finding concerning the risk of harm to vulnerable children in Australia is not well-expressed and is not supported by any adequate or persuasive reasoning. It does not, however, follow that it was unsupported by, or contrary to, the evidence which was before the Tribunal.

62    The applicant’s contention that the Tribunal erred because there was no evidence capable of supporting the Tribunal’s finding proceeds on the premise that specific evidence was required to prove a connection between offences involving internet access to child exploitation material and the risk of harm to the Australian community should such offending reoccur. That is a false premise. Specific evidence is not required to support such a finding: Craig v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 196 at [17] overruling Dunn v Minister for Immigration and Border Protection [2016] FCA 489. It is not difficult to see why that is so. In considering whether there is any risk to the Australian community should an offender reoffend, the decision-maker is essentially making an evaluative judgment, deduction or inference in respect of a hypothetical question. That judgment, deduction or inference must be based primarily on the nature of the offence committed by an offender. Evidence of an actual risk is not required.

63    It is no answer for the applicant to contend that the child exploitation material or child pornography accessed and transmitted by the applicant came from international sites. That is so for at least two reasons. First, there was no unequivocal finding that all the images accessed or transmitted by the applicant were of children from other countries. The sentencing judge simply observed that the “majority, if not all” of the material appeared to come from international sites. Second, and in any event, even if the images accessed and transmitted by the applicant in the course of his offending were all from international sites, it does not follow that any reoffending by him would not pose any risk to vulnerable children in Australia. The reason why that is so was conveniently summarised by the delegate in his reasons for refusing to revoke the cancellation of the applicant’s visa. Having found (at [46]) that the applicant’s offences “contributed to the market for child pornography and the abuse of the victims”, the delegate reasoned as follows (at [67]):

I find that if [the applicant] reoffended in a similar manner it could result in harm to children within the Australian community. Such offending contributes to the market for child pornography and it is not inconceivable that Australian children could be involved in the production of such pornography or child abuse images. Also, any encouragement of the market for child pornography in Australia increases the presence of such material in Australia with the attendant risk that Australian children will be exposed to it and harmed as a result.

64    That reasoning is compelling.

65    Similar reasoning was employed by the Yates J at first instance in Craig v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 428 at [35] (referred to by the Full Court in Craig at [9]):

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

(Emphasis in original)

66    The Full Court in Craig (at [10]) found that reasoning to be correct. The same reasoning applies in this matter.

67    The applicant’s reliance on the sentencing judge’s finding that there was no evidence that the applicant was a “direct threat” to children in Australia, and Dr GA’s evidence that the risk of the applicant “offending with children physically”, was misplaced and missed the point. While the basis of the Tribunal’s finding concerning the harm that could be suffered by vulnerable children in Australia should the applicant reoffend was perhaps not adequately expressed or explained, it is tolerably clear that the Tribunal was not suggesting that there was any risk that any reoffending by the applicant would involve him directly physically interfere with children. The Tribunal, rather, was referring to the sort of harm identified by the delegate. That finding was rationally open to the Tribunal and not inconsistent with anything said by the sentencing judge or Dr GA.

68    It follows that there is no merit in the applicant’s contention that the Tribunal’s finding at [37] of its reasons was unsupported by evidence, or contrary to the evidence.

69    It should finally be noted that the Minister relied on authority which indicated that, when personally making a decision under s 501CA(4) of the Migration Act, the Minister is able to rely upon his or her own “personal or specialised knowledge or by reference to which is commonly known”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17]. That principle has been extended and applied to decisions made by the Tribunal under s 501CA(4): Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89 at [49]. The Tribunal may accordingly act on its own personal or specialised knowledge and on matters which are commonly known, including statements sourced from accumulated knowledge. There is no express requirement that the Minister disclose whether a finding was made from personal knowledge: Viane at [18]. The same would presumably apply to the Tribunal.

70    That is perhaps another, though perhaps not as compelling, basis for rejecting the applicant’s ground 3. While there may be nothing to suggest that the Tribunal, or the delegate, possessed any “personal or specialised knowledge” about the risks posed to Australian children, or the Australian community, by offences of the sort committed by the applicant, it could perhaps be said that the risk posed by such offences is not only fairly obvious, but also commonly known. That, however, amounts to little more than acceptance that, as discussed earlier, it was rationally open to the Tribunal to deduce or infer, from the very nature of the offences committed by the applicant, that there would be a risk to Australian children, or the Australian community, if further offences of that sort were committed.

Ground 5 – did the Tribunal fail to have regard to the applicant’s representation that his poor mental health was another reason for revocation?

71    Amongst the voluminous material that the applicant relied upon before the Tribunal was a written submission or representation by the applicant’s legal representatives which included the following statement in respect of the impediments that the applicant would face if removed from Australia:

However, we do submit that the removal of the Applicant from Australia will have dire ramifications on his mental health and relationship with his child.

The Applicant has been seeking treatment to address his mental health and psychiatric issues. To continue his recovery, he will require ongoing therapeutic support so as to ensure that he does not relapse. Therefore, fundamental to his mental recovery is the need for him to continue with psychological treatment.

The Applicant has a child in Australia who is still an infant. His removal from Australia will likely cause more depression and will impede the progress that he has been making in improving his mental health condition.

The Applicant has a child in Australia who is still an infant. A decision to remove the Applicant from Australia will deny the child the opportunity to have his father during his developmental years. If he was removed from Australia it is unlikely, he would be able to get a visa to return to Australia for the majority of the child’s adolescent years, if at all.

72    The applicant also referred to the potential impacts on his mental health should he be removed in a letter authored by himself and provided to the Tribunal. In that letter, the applicant stated:

Finally, having not stayed in regular contact with anyone from either high school or college I don’t believe that I would have the same level of support that I have found from friends I have met here. The ability to contact people who have been willing to see my improvements, stand by me and when able to sit and just talk even if they hate what I did has been another important factor in my improved mental health and I do worry about if people I haven't seen since high school would be able to be as familier with me and therefore be as helpful as those I have met here. I am better now and my starting to repair things but as the person who suffered the most from my old communication style I really hope to have a chance to display to Mary who I really am.

73    The applicant contended that the Tribunal failed to “deal with” this representation because it did not, despite being required to, engage in an “active intellectual process” in considering it.

74    That contention must be rejected.

75    There is no doubt that decision-makers in respect of decisions under s 501CA(4) cannot ignore, overlook, or misunderstand substantial and clearly articulated arguments or representations made by or on behalf of the person who is seeking revocation of the cancellation of their visa: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13], [105]. As for how such representations are to be considered, the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 said as follows (at [24]-[26]):

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.

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.

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.

(Footnotes omitted)

76    The Tribunal plainly did not ignore or overlook the representations made by, or on behalf of, the applicant in respect of the impacts that his removal would have on his mental health, at least to the extent that they could be said to be said to have been clearly articulated and relevant. The Tribunal referred to, and addressed, those representations at length in the context of considering the extent of the impediments that might be suffered by the applicant if he was removed: see R[132]-[134], [136] and [141]. Nor could it be said that the Tribunal misunderstood those claims. The applicant’s submissions to the contrary amount to little more than complaints concerning the merits of the findings made by the Tribunal.

77    The Tribunal accepted that the applicant had suffered psychological issues, though it found that “[a]part from the prescribed medication he takes and the treatment for his sexual deviance, it is unclear what other treatment he requires”: R[133]. The Tribunal nevertheless found that, if the applicant required ongoing treatment for his mental health issues, he “will have the same access to social, medical, and economic support as other citizens of Canada or the USA, should he need those supports”: R[139]. The Tribunal also concluded, in that context, that if it was necessary to compare the conditions in Australia with those in the United States, the applicant “would be better off in the USA than in Australia because of the affection and support of his mother and step-father, emotionally, financially and for accommodation”: R[141]. As for the applicant’s claims that he would suffer as a result of being separated from his child, the Tribunal noted that the applicant has had no relationship with his child since January 2020, but nevertheless accepted that the applicant would be distressed by being unable to have in person contact with his child and that his permanent removal may adversely impact his mental health: R[134]. The Tribunal ultimately concluded that the “extent of impediments if removed” consideration “weighs slightly in favour of revocation”: R[142]

78    There is, in all the circumstances, no substance to the applicant’s contention that the Tribunal failed to have regard to his representation that his poor mental health was another reason for revoking the visa cancellation. The Tribunal fairly considered the applicant’s representations in respect of that issue and made appropriate and available findings concerning them. The applicant’s contentions to the contrary amount to nothing more than complaints concerning the merits of the Tribunal’s findings.

Ground 6 – did the Tribunal fail to have regard to the applicant’s evidence going to the expectations of the Australian community?

79    This review ground is somewhat difficult to comprehend.

80    The applicant appeared to contend that, in assessing the expectations of the Australian community, the Tribunal overlooked his submission and evidence about a “business plan” pursuant to which it was said that he would “give back to the community”. There are, however, at least two fundamental problems with that contention: first, it misunderstands the consideration relating to the expectations of the Australian community (paragraph 8.4 of Direction No. 90); and second, there is no basis for the contention that the Tribunal overlooked his submission concerning the business plan.

81    As for the consideration relating to the expectations of the Australian community, being the consideration which is addressed in paragraph 8.4 of Direction No. 90, the following propositions concerning the meaning of that paragraph are well-established: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3 at [31]-[35] and the cases there cited; Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (2023) 297 FCR 662 [2023] FCAFC 68 at [24]. First, the ascertainment of the relevant community expectations is not based on any evidence concerning the community’s views. Rather, the community’s expectations are determined by the Minister’s, or the government’s, conception of those expectations. Second, it is not for the decision-maker to determine the content of the expectations or undertake an assessment of what the community expectations are, having regard to the particular circumstances of the case. Rather, paragraph 8.4 itself provides that content. Third, the community expectations consideration is, in substance, adverse to any applicant.

82    Having regard to those propositions concerning paragraph 8.4 of Direction No. 90, it is readily apparent that the applicant’s submissions concerning his proposed business plan were entirely irrelevant to the expectations of the Australian community and entirely irrelevant to the Tribunal’s determination as to the weight to be given to that consideration. It was not for the Tribunal to consider what the community expectations might be in the applicant’s case having regards to facts or circumstances like the applicant’s business plan.

83    In any event, the Tribunal did not overlook or ignore the applicant’s submissions or evidence concerning his business plan. It considered what the applicant had said about the business plan, and the applicant’s connections with the person with whom he had, or proposed to have, collaborated with in respect of that plan, at paragraph 146 of its reasons. That consideration occurred in the context of the Tribunal’s consideration of the applicant’s links to Australia. To the extent that the applicant’s evidence concerning his business plan was of any relevance, or deserving of any weight, it was in respect of the applicant’s links to Australia. Nowhere in the vast quantity of material supplied to the Tribunal by or on the applicant’s behalf was it clearly stated that the applicant’s business plan was somehow relevant to the expectations of the Australian community. It might finally be added that it is hardly surprising, given the circumstances of the case, that the Tribunal gave little weight to the applicant’s business plan. It could hardly be seen to be a significant, let alone persuasive or compelling, element of the applicant’s representations.

84    There is no merit in review ground 6. The Tribunal did not err as contended by the applicant.

Ground 7 – did the Tribunal deny the applicant procedural fairness by dismissing his submissions based on another Tribunal decision?

85    In his written submissions to the Tribunal, the applicant drew the Tribunal’s attention to a prior decision by the Tribunal in which an applicant had successfully persuaded the Tribunal to set aside a non-revocation decision by a delegate and replace it with a decision to revoke a visa cancellation: GCXD and Minister for Home Affairs (Migration) [2019] AATA 5162. The applicant submitted that that prior decision was similar to his case. The Tribunal, however, found that the “case references” provided by the applicant did not assist because the Tribunal was considering the applicant’s circumstances and “in particular the expert evidence about him”.

86    The applicant contended that in dismissing his submission the Tribunal denied him procedural fairness. The basis of that submission appeared to be that the Tribunal failed to “engage in an active intellectual process by considering this submission”. The applicant also contended that the Tribunal had taken a different approach to cases that the Minister had referred to in his submissions and had simply not listened to him.

87    While the Tribunal dealt with the applicant’s submission concerning GCXD in a somewhat cursory and dismissive way, it did not thereby deny the applicant procedural fairness. The Tribunal considered the applicant’s submission and dismissed it for reasons that, while cursory, were not incorrect. The prior decision of the Tribunal in GCXD had no precedential value and the Tribunal was correct when it said that it was required to consider the circumstances of the applicant’s case. It might also be added that the apparent suggestion by the applicant that the circumstances of GCXD were similar to his circumstances had little merit. There were in fact a number of significant differences between the applicant’s case and GCXD, including the fact that the Tribunal in GCXD gave considerable weight to the primary circumstance of the best interests of the applicant’s minor children in Australia. The Tribunal in GCXD also described the applicant’s circumstances as being “unique”.

88    It does not assist the applicant to repeat the unhelpful mantra that the Tribunal did not engage in an “active intellectual process” in respect of this submission. There is also no merit in the applicant’s contention that the Tribunal did not listen to him, or that the Tribunal took a more favourable stance when the Minister referred to prior Tribunal decisions in which offences of the sort committed by the applicant were described as being serious. There could be little doubt that the offences committed by the applicant were serious.

89    In all the circumstances, the fact that the Tribunal dealt with one of the applicant’s many submissions in a fairly cursory manner is incapable of supporting the serious allegation that the Tribunal denied the applicant procedural fairness. That is all the more so in circumstances where the submission in question was very weak and unpersuasive in any event and the Tribunal’s dismissal of it was not erroneous.

Conclusion and disposition

90    The applicant has not made out any of his grounds of review. The Tribunal did not err in any of the ways alleged by the applicant. His application must be dismissed with costs.

Associate:

Dated:    20 March 2024