CLF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 186
•26 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 186
File number(s): PEG 150 of 2021 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 26 October 2021 Catchwords: MIGRATION – temporary special category visa – where applicant’s visa cancelled under s 116(1)(e) of the Migration Act 1958 (Cth) – where Administrative Appeals Tribunal was satisfied applicant ‘is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community or the health or safety of an individual’ – whether Tribunal misapplied the test – whether Tribunal’s decision was illogical or irrational – no jurisdictional error – application dismissed Legislation: Bail Act 1982 (WA), s 51(2a)
Classifications (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 59(5)
Criminal Code Act Compilation Act 1913 (WA), ss 68(1), 71, 74B(2), 220, 313(1)(a), 329, 333, 338C(2)
Migration Act 1958 (Cth), ss 116, 189(1), 476
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Restraining Orders Act 1997 (WA), s 61(1)
Cases cited: Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90
COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190; (2015) 236 FCR 148
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624
Phintong v R [2011] WASCA 192
R v Liddington (1997) 18 WAR 394
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 26 July 2021 Date of hearing: 26 July 2021 Place: Melbourne Counsel for the Applicant: Mr Blades Solicitor for the Applicant: Tang Law Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 150 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLF21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
26 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
INTRODUCTION
On 26 July 2021, the applicant filed an application in this Court pursuant to s 476 of the Migration Act 1958 (Cth) (“Act”) seeking judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 16 November 2020 (“Judicial Review Application”). The Tribunal affirmed a decision made by a delegate of the first respondent (“Minister”) to cancel the applicant’s Class TY Subclass 444 Special Category (temporary) visa (“visa”) under s 116(1)(e) of the Act.
The materials before the Court include the Judicial Review Application, an affidavit of Sophie Louise Manera affirmed 18 December 2020, a Court Book (“CB”) numbering 217 pages (which was marked as Exhibit 1), an affidavit of Elias Kuan affirmed 17 March 2021, an affidavit of Arran Niall Gerrard affirmed 19 March 2021 (“Affidavit of Arran Gerrard”), the Applicant’s written submissions filed 18 May 2021 (“Applicant’s Written Submissions”) and the Minister’s written submissions filed 27 May 2021 (“Minister’s Written Submissions”).
This matter came on for hearing on 26 July 2021 by videoconference. Mr Blades of Counsel appeared for the applicant. Mr Papalia appeared for the Minister.
Background
The applicant is a citizen of New Zealand who has resided in Australia since 2012 (CB 135-143). He was granted the visa on 4 October 2018 (CB 135).
By letter dated 27 July 2020, the applicant was served by the Minister’s Department (“Department”) with a Notice of Intention to Consider Cancellation under s 116 of the Act (“NOICC”) (CB 51-57). The letter stated that the Department had received information from the Western Australian Police (CB 53-54). That information related to the following alleged behaviour and subsequent charges and convictions:
(a)on 19 May 2019, the applicant was charged with the offence of common assault in circumstances of aggravation or racial aggravation and deprivation of liberty, contrary to ss 313(1)(a) and 333 of the Criminal Code Act Compilation Act 1913 (WA) (“Criminal Code”) (CB 32-39). It was alleged that the applicant committed these offences on 18 May 2019 against his ex-de facto partner (“former partner”);
(b)on 4 June 2019, the applicant was personally served with a restraining order at Hakea Prison, which had been issued by the Perth Magistrates Court in favour of the applicant’s former partner and her daughter (CB 47-48);
(c)on 11 June 2019, the applicant was charged with 2 counts of knowingly sexually penetrating a child who was a lineal/de-facto relative, contrary to ss 329(2) of the Criminal Code (CB 24-28). These charges were alleged to have been committed against the applicant’s former partner’s daughter. The first charge is alleged to have occurred between 1 February 2018 and 31 March 2018 at the family residence (CB 24-28). The second charge is alleged to have occurred between 1 July 2018 and 1 December 2018 on a school drop-off (CB 24-28);
(d)on the same day, 11 June 2019, the applicant was also charged with the offence of possession of an indecent or obscene article contrary to s 59(5) of the Classifications (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (CB 29-31). That charge arose from the discovery by Western Australian Police on 3 June 2019 of 58 pornographic discs at the applicant’s residence. 18 of those discs were alleged to be indecent or obscene - two allegedly contained bestiality material and the remaining 16 allegedly contained indecent or obscene sex acts involving urination or defecation (CB 30);
(e)on 13 December 2019, the applicant was charged with the offences of breaching protective bail conditions and breaching the terms of a restraining order, contrary to ss 51(2a) of the Bail Act 1982 (WA) and 61(1) of the Restraining Orders Act 1997 (WA), respectively (CB 40-46). Those offences were alleged to have been committed on 13 December 2019, when the applicant was found by WA Police at a café in the company of his former partner (CB 45). On 14 December 2019, the applicant was convicted in the Perth Magistrates Court of these two charges. He received a fine of $750 (Affidavit of Arran Gerrard, Annexure AG-1);
(f)on 28 January 2020, the applicant was charged with the following offences which were alleged to have been committed at the family residence (CB 14-23):
(i)sexual penetration of his former partner’s daughter, who he knew to be a de facto child, between 1 April 2017 and 30 April 2018, contrary to s 329(2) of the Criminal Code (2 Counts);
(ii)indecently recorded his former partner’s daughter, who he knew to be a de facto child, on 3 June 2019, contrary to s 329(6) of the Criminal Code;
(iii)possession of child exploitation material (33 images and 74 videos) on 18 May 2019, contrary to s 220 of the Criminal Code; and
(iv)indecent dealings with his former partner’s daughter, who he knew to be a de facto child, on 3 July 2019, contrary to s 329(4) of the Criminal Code (2 Counts).
Referring to the above charges against the applicant and his two convictions for breaching protective bail conditions and breaching the terms of a restraining order, the NOICC stated that there appeared to be grounds for cancellation of the applicant’s visa under s 116(1)(e) of the Act as it appeared that the applicant’s continued presence in Australia may be a risk to the safety of a segment of the Australian community, namely children (CB 54).
The applicant was invited to comment on the information in the NOICC and show why the ground or grounds of cancellation do not exist, or provide reasons why the visa should not be cancelled (CB 56). The applicant did so on 20 and 21 August 2020 (CB 59-73). In his statutory declaration made on 21 August 2020 (CB 71-72), the applicant stated that he had pleaded not guilty to all charges listed in the NOICC, he had been a law-abiding citizen throughout his life, he was employed in a senior position in the mining industry, that his presence in Australia was not a risk to the health, safety or good order of the Australian community and that his visa should not be cancelled.
On 26 August 2020, a delegate of the Minister cancelled the applicant’s visa under s 116(1)(e) of the Act (CB 80-82) (“Delegate’s Decision”). In relation to whether a ground for cancellation of the visa existed, the Delegate’s Decision stated (CB 89):
… the visa holder’s continued presence in Australia poses a risk he may seek to commit further offences related to grooming, attempted sexual conduct and indecent dealings with underage children, which may cause them psychological and long-term harm. It therefore appears his presence in Australia may be a risk to the safety of a segment of the Australian community, namely minors.
I am therefore satisfied there are grounds for cancellation under paragraph (sic) s 116(1)(e)(i) of the Act.
The applicant was notified of the Delegate’s Decision by email to his authorised representatives (CB 79-82 and 94).
The applicant lodged an application for review of the Delegate’s Decision with the Tribunal on 31 August 2020 (CB 96-97). The Tribunal acknowledged receipt of that application on 1 September 2020 (CB 98-101).
The applicant was detained by officers of the Department on 3 September 2020, under s 189(1) of the Act (CB 113).
On 7 October 2020, the applicant was invited to appear and give evidence at a hearing before the Tribunal on 10 November 2020 (CB 151-154). On 9 November 2020, the Tribunal notified the applicant that the hearing had been rescheduled to 13 November 2020 (CB 179-181). The applicant appeared in the Sydney Registry of the Tribunal by Microsoft Teams, with the assistance of his solicitor (CB 188 and 190-193). The applicant provided various supporting documents to the Tribunal prior to the hearing (CB 102-111, 114-119, 127-130, 160-162).
The Tribunal affirmed the Delegate’s Decision on 16 November 2020 (CB 197). On 17 November 2020, the applicant was notified of the Tribunal’s decision (CB 194-196).
The applicant filed the Judicial Review Application on 18 December 2020.
Tribunal’s Decision
The Tribunal’s decision is 11 pages long and spans 62 paragraphs. It appears at pages 197-207 of the CB.
At [4] of its decision the Tribunal identified that the issue before it was “whether the ground for cancellation had been made out, and if so, whether the applicant’s visa should be cancelled.”
The Tribunal then summarised the relevant principles (at [5] to [7]) noting that pursuant to s 116 of the Act, “the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.” The Tribunal noted that, in this case, these include the ground set out in s 116(1)(e) of the Act which provides that a visa may be cancelled if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. The Tribunal noted that if the decision-maker is satisfied that the ground for cancellation is made out, they must proceed to consider whether the visa should be cancelled.
The Tribunal then summarised the principles outlined by His Honour Judge Smith in Gong v Minister for Immigration and Border Protection [2016] FCCA 561 that “there does not have to be any direct, solid or certain foundation before the power” to cancel a visa in s 116(1)(e) arises, “it can arise on the possibility that some event occurred in the past” and the Tribunal does not need to be satisfied of guilt, only that there may be a risk (at [6] to [7]).
At [8] to [10] the Tribunal noted that the Department received information from the Western Australian Police that the applicant has been charged with a number of offences.
At [12] to [14] the Tribunal summarised the prosecution statements of material facts for each charge (“Police Charge Sheets”), as follows:
12.The applicant was in a relationship with his former partner and lived with her and her two children. The offences allegedly took place between April 2017 and May 2019, commencing when the alleged victim was aged 14. The offences are alleged to have taken place at the visa applicant's home when the children's mother was absent; one offence is alleged to have taken place in the bedroom and one is alleged to have taken place when the applicant was dropping off the child at school.
13.The police report indicates that during the search of the applicant's family home, his electronic devices were seized and found to contain naked images of the victim. The victim was unaware the images were being taken. The electronic devices also contained images and videos of child exploitation material (CEM), bestiality and obscene articles. There were 332 images and 74 videos of CEM, depicting male and female children between the ages of seven to 15 years old. During the search of the applicant's home, 58 pornography discs were also found in a backpack in a rear room of his house, described by other occupants as 'Arran's Man Cave'. Eighteen of the discs were found to be indecent or obscene.
14.It is alleged that on 18 May 2019, as a result of an argument, the applicant allegedly assaulted his de facto partner by throwing a mobile telephone at her and then held her against her will for four hours in their bedroom. As a result of the argument, the applicant was issued with a Restraining Order for two years, preventing him from contacting the victim and being within 100 metres of her. The applicant was released from custody in December 2019 and breached the order by approaching his ex-partner within 100 metres. As a result, the applicant was convicted of the following offences:
• Breach of protective bail conditions - s.51 of the Bail Act 1982;
•Breach of the Family Violence Restraining Order or Violence Restraining Order (VRO) - s.61(1) of the Restraining Orders Act 1997.
The Tribunal referred to the applicant’s written submissions to the delegate and acknowledged that the applicant had stated that he pleaded not guilty to all charges, that he has no contact with the alleged victims, the accusations were spurious and he was granted bail in circumstances where his former partner’s sister provided his surety (at [15]).
At [16] the Tribunal referred to the applicant’s evidence to the delegate that he was not a flight risk but stated that it did not consider that the risk to the community would only arise if the applicant was a flight risk.
At [17] to [22] the Tribunal summarised the applicant’s evidence and the submissions that he made to the Tribunal, as follows:
(a)the applicant stated that the accusations of his former partner’s daughter were not true and that she would do anything to get her mother’s attention.
(b)in relation to the offences concerning his former partner, the applicant stated that he received text messages meant for her ex-husband by mistake and they had an argument. The applicant admitted that he locked the door but did not physically prevent his former partner from leaving and this situation led to the deprivation of liberty charge. The applicant stated that his former partner threw a phone at him and he threw it back which lead to the assault charge.
(c)the applicant told the Tribunal that his former partner did not want a restraining order and that it was arranged by the police. According to the applicant the charges arose as a result of a misunderstanding on the part of the applicant as he believed his former partner would drop the restraining order and that they could meet. He did not intend to breach any laws but there “was miscommunication or misjudgement on his part”.
(d)in relation to the child exploitation material charges, the applicant said he was looking at a photo sharing website which contained a range of photographs and he had copied some child exploitation material. The applicant stated that he was “gathering information” and that he has no interest in children. The Tribunal noted that according to the applicant, he was dealing with his own depression and sexual abuse and did not know how to handle it or who to talk to.
(e)the applicant indicated that he had not had any problems with the law previously and that since these incidents he had not had any issues on remand or while he was in detention. The applicant stated that he is not a risk to his former partner and he does not consume alcohol or drugs. The applicant explained that he grew up in a violent family and experienced sexual and physical abuse himself and is not a threat to anyone.
(f)the Tribunal received oral evidence from the applicant’s former partner’s sister that she did not believe the applicant was a risk to the public. The Tribunal also received oral evidence from a friend and former colleague of the applicant who told the Tribunal that the charges were out of character for the applicant. The Tribunal accepted the evidence of these witness and “that they believe the applicant to be a good person and a person of good character” (at [21]).
(g)the Tribunal also noted that it had received a number of character references for the applicant and it accepted that “some of his friends and colleagues believe the applicant to be of good character” (at [21]).
(h)the applicant provided to the Tribunal evidence of having participated in the ‘Men choosing Respect’ program between December 2019 and June 2020 which was accepted by the Tribunal.
(i)the Tribunal acknowledged that, other than the charges for failing to comply with a protective bail condition and breaching the terms of a restraining order, the applicant had not been convicted of the other offences he had been charged with and he has pleaded not guilty to them and denied many of the offences occurred.
At [23] the Tribunal stated that it placed weight on the information contained in the Police Charge Sheets, as set out in the Delegate’s Decision. The Tribunal noted that it was not necessary for it to determine whether the events described occurred but that the applicant appeared to concede that:
(a)during an argument with his former partner he locked the door and told her that she could not leave the room;
(b)a phone was thrown, although his evidence to the Tribunal was that his former partner threw it at him first; and
(c)he was in possession of child exploitation material, while claiming it was only for the purpose of “gathering information” and of no interest to him.
The Tribunal formed the view that this conduct demonstrated “anti-social behaviour that had the potential to cause fear in, or harm to, another person” (at [23])..
The Tribunal also placed weight at [24] on the applicant’s admission that he met with his former partner in circumstances where his bail conditions did not allow him to do so. The Tribunal took issue with the applicant’s claims that he misunderstood the terms of the restraining order and his claimed lack of intention in breaching bail. The Tribunal considered that the conditions of the applicant’s bail would have been explained to him when it was granted and the applicant would have been aware of the restrictions placed on him. The Tribunal considered that:
The issuance of the restraining order indicates that an assessment was made that the applicant may pose a risk to another person - the applicant's ex-partner - and that formal protective arrangements needed to be put in place. The breach of that order also suggests that the applicant engaged in conduct that had the potential of causing fear to another person.
At [25], the Tribunal noted the submissions of the applicant that he was no longer in contact with his former partner and now understands the terms of the restraining order. The Tribunal reiterated that it did not accept that the applicant was previously unaware that the restraining order did not permit him to have contact with his partner, particularly as there was no evidence of it being varied and as its terms would have been explained to the applicant at the time it was issued. The Tribunal stated that it was also of the view that the applicant would have been aware that his conduct, including conduct relating to the incident with his former partner, and the downloading of child exploitation material, was not consistent with Australian laws. The Tribunal stated that (at [25]):
While the applicant may not have contact with his partner and may not have the opportunity to engage in the same conduct in relation to her, the Tribunal is concerned that he may engage in similar conduct in relation to other persons. Further, the downloading of [child exploitation material] is not dependent on the applicant's relationship with his partner.
At [26], the Tribunal:
(a)accepted that the applicant has had the opportunity to obtain mental health treatment and had several sessions with a psychologist since his detention;
(b)accepted the applicant's evidence that he has no prior criminal history;
(c)acknowledged that the applicant had been granted bail and his evidence that the surety bail had been reduced because he was assessed as not being a risk. The Tribunal noted, however, that the considerations for the grant of bail differ from those arising before the Tribunal in considering whether a ground for cancellation of a visa exists;
(d)acknowledged the positive character references provided to the applicant, including from the sister of his former partner and his friends and work colleagues; and
(e)accepted that the applicant does not appear to have had any problems with the law prior to the incidents, and with the migration laws of any country.
Notwithstanding the above matters, the Tribunal formed the view that the applicant had engaged in “anti-social behaviour, knowingly and intentionally”. The Tribunal considered that the risk of the applicant engaging in similar conduct in the future in relation to others is “more than negligible and is a real risk, however small” (at [26]).
In relation to whether the ground for cancellation existed, the Tribunal concluded at [27] that:
Having regard to all the circumstances, the Tribunal finds that the applicant's presence may be a risk to the safety of a segment of the Australian community (in particular, children) or to an individual (should the applicant resume contact with his ex-partner). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
The Tribunal’s decision was divided into two parts. The Tribunal first considered whether the ground for cancellation in s 116(1)(e) of the Act was established as outlined above. It then considered whether it should exercise its discretion to cancel the visa. The applicant’s ground of review focuses solely upon the Tribunal’s satisfaction that the ground for cancellation in s 116(1)(e) of the Act had arisen, rather than the second-stage exercise of discretion. Therefore, the Court does not intend to summarise [28] to [62] of the Tribunal’s decision other than to note that the Tribunal exercised its discretion in favour of cancellation.
Proceedings in this Court
The Judicial Review Application contains one ground of review as follows:
1.The Tribunal made a jurisdictional error through constructively failing to review the delegate’s decision, by misapplying s 116(1)(e) of the Migration Act 1958, or by making an irrational or illogical decision.
Particulars
(a) The Tribunal found at [27]: “Having regard to all the circumstances, … the applicant’s presence may be a risk to the safety of a segment of the Australian community (in particular, children) or to an individual (should the applicant resume contact with his ex-partner).”
(b) The Tribunal’s finding at [27] was predicated upon its earlier findings:
(i) at [23] that the applicant had engaged in conduct which demonstrated anti-social behaviour that has the potential of causing fear in, or harm to, another person;
(ii) at [24] that the breach of the VRO suggested that the applicant engaged in conduct that had the potential of causing fear to another person.
(c) The Tribunal’s finding that “anti-social behaviour” had been demonstrated that has the potential of causing fear in, or harm to, another person did not logically support a conclusion that a ground for cancellation of the applicant’s visa existed under s 116(1)(e) of the Migration Act 1958, which relevantly provides that the presence of the visa holder in Australia “is or may be… a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals;…”
(d) Further, the Tribunal’s finding at [24] that the breach of the VRO also suggests that the applicant engaged in conduct that had the potential of causing “fear” to another person did not logically support a conclusion that a ground for cancellation of the applicant’s visa existed under s 116(1)(e), in particular under subparagraph (ii) which provides for an actual or potential risk to the health or safety of an individual or individuals.
It is uncontroversial that to succeed in this Court, the applicant must demonstrate that the Tribunal has fallen into jurisdictional error.
Relevant legal principles
Section 116(1)(e) of the Act provides that:
(1)Subject to subjections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e)the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)the health or safety of an individual or individuals; …
Cancellation under s 116(1)(e) of the Act involves a two-stage process:
(a)First, the decision-maker (here, the Tribunal) must reach a state of satisfaction that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the community or to the health or safety of an individual or individuals.
(b)Second, if the first stage is established, the Tribunal has a discretion as to whether or not to cancel the visa.
This approach was endorsed by Banks-Smith J in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (“Leota”) at [16]-[18].[1]
[1] See also Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90 at [19]-[21] (Wheelahan J).
As outlined above, in this case, the applicant does not challenge the Tribunal’s exercise of its discretion to cancel the visa. The focus of the applicant’s challenge to the Tribunal’s decision is on the first stage, arguing that it was not open to the Tribunal to be satisfied that a ground for cancellation of the applicant’s visa had been established.
As noted by Banks-Smith J in Leota, s 116(1)(e) in its current form was introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to this amendment, the provision provided that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia “is, or would be, a risk to the health, safety or good order of the Australian community”. Banks-Smith J concluded that the introduction of the words “or may be, or would or might be, a risk” lowers the threshold for the satisfaction as to risk: see also Wheelahan J in Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90 (“Cai”).
Importantly, the above amendment to s 116(1)(e) of the Act does not detract from earlier authority dealing with the meaning of “risk to health, safety or good order of the Australian community”: Leota at [50]. Relevantly to the Tribunal’s decision here, in Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624 (Newall), Branson J observed at [21] that:
It may be accepted that the terms “health” and “safety” are used in s 116(1)(e) of the Act in their respective ordinary meanings.
As to the scope for judicial review where the condition on which a power is exercised is the state of mind of the decision-maker, such as “satisfaction”, both Banks-Smith J in Leota (at [17] to [18]) and Wheelahan J in Cai (at [20]) considered that this scope is more limited than where the condition is an objective fact. Wheelan J noted in Cai that:
[20]The repository’s state of satisfaction as to risk is a subjective jurisdictional fact. Therefore, the grounds on which the existence of the requisite subjective state of satisfaction may be reviewed are limited, as was recently explained by the Full Court in Ali v Minister for Home Affairs [2020] FCAFC 109; 280 ALR 393 at [42] (Collier, Reeves and Derrington JJ). See also the cases cited therein, including Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.
(Emphasis added)
In EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [70], Derrington J summarised these principles as follows:
[70]… in conformity with the manner in which the legislature has granted power, any review by the Court, as to the existence of a subjective jurisdictional fact must be limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power. If there are errors in the process by which a state of mind is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, the state of mind will not be that which the legislature impliedly requires. Similarly, if, in reaching the state of mind, the repository of power has asked themselves the wrong question as a consequence of a mistake of law, the state of mind is not that on which the exercise of power is conditioned. It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence. Further, even if it cannot be detected that an error occurred in the application of law or consideration of the correct matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that one of the identified error has occurred …
(Emphasis added)
Consideration
The Tribunal’s reasons, having regard to the way it first isolated and addresses the question of whether a ground for cancellation existed, disclose that it understood the nature of its statutory task as outlined in the authorities stated above. This is also reflected in the transcript of the hearing before the Tribunal, where the decision-maker clearly articulates the process they were required to follow in considering the application before them (Affidavit of Elias Kuan, Annexure “EK1”, p18-19).
The Tribunal identified that it needed to be satisfied as to the question of risk as set out in s 116(1)(e) of the Act before proceeding to consider its discretion as to whether the visa should be cancelled. This approach to s 116(1)(e) of the Act demonstrates no error.
The issue in this case arises from whether the Tribunal properly applied s 116(1)(e) of the Act and logically and rationally formed the relevant state of satisfaction that is required under the provision. The Court must consider whether the Tribunal’s finding that the applicant had engaged in “anti-social behaviour” which had “the potential to cause fear in, or harm to, another person” was sufficient for the Tribunal to be satisfied that a ground for cancellation existed under s 116(1)(e) of the Act.
Although the Tribunal refers to a number of charges against the applicant at [8] to [10] of its decision, it is not disputed that the “anti-social behaviour” that the Tribunal was referring to was focused on the following:
(a)the charges pending against the applicant for assault and deprivation of liberty of his former partner which resulted in the applicant being made the subject of protective bail conditions and a restraining order;
(b)the applicant’s subsequent convictions for breaching those protective bail conditions and the non-contact provisions of the restraining order; and
(c)‘that he was in possession of child exploitation material, while claiming it was only for the purpose of gathering information and of no interest to him’ (at [23]).
The applicant takes issue with the Tribunal’s finding that this “anti-social behaviour” supported the conclusion that his presence in Australia was a risk to the safety of a segment of the Australian community, being children, or to an individual, being his former partner. The applicant argues that the Tribunal made a jurisdictional error by misapplying s 116(1)(e) of the Act or that the Tribunal’s findings do not logically support a conclusion that a ground for cancellation of the applicant’s visa existed under s 116(1)(e) of the Act.
Having considered the Tribunal’s reasons, I am not satisfied that the Tribunal misapplied the test in s 116(1)(e) of the Act or that the Tribunal’s decision was illogical or irrational.
Turning first to the Tribunal’s finding that the applicant posed a risk to the safety of an individual, being his former partner, the Tribunal:
(a)noted that the applicant appeared to concede that during an argument with his former partner he locked the door and told her that she could not leave the room and that a phone was thrown by him, although the applicant claimed it was thrown at him first. The Tribunal considered this conduct to be “anti-social behaviour” that has the potential of causing fear in, or harm to, another person (at [23]);
(b)placed weight on the applicant’s admission that he met with his former partner in circumstances where the Tribunal found the applicant would have been aware of the requirements of the restraining order (at [24]);
(c)considered that the issuance of the restraining order itself suggested that there was an assessment that the applicant did pose a risk to his former partner and that protective arrangements were required and that the breach of that order suggested that the applicant had engaged in conduct that had the potential of causing fear to another person (at [24]);
(d)did not accept that the applicant was unaware that the restraining order did not permit him to have contact with his former partner, noting that there was no evidence of the restraining order being varied and given the terms of the restraining order would have been explained to the applicant at the time it was issued (at [25]); and
(e)found that the applicant had engaged in this conduct “knowingly and intentionally” and that the risk of the applicant engaging in similar conduct towards others “in the future is more than negligible and a real risk, however small” (at [26]).
Counsel for the applicant submitted that the breach of restraining order and protective bail conditions for which the applicant received a global fine of $750, should be considered to be a minor criminal offence, and therefore, according to PAM3, s 116(1)(e) should not have been considered in respect of those offences as they did not meet the threshold required to cancel the visa.
However, the breach of restraining order and protective bail conditions should not be considered in isolation. Read as a whole, the Tribunal’s findings in relation to the risk of harm to his former partner include:
(a)the conduct giving rise to the assault and deprivation of liberty charges (and bail being imposed);
(b)the restraining order itself (which the Tribunal placed weight on in suggesting an assessment was made by the Magistrates Court that there was a risk of harm); and
(c)the subsequent breach of those court imposed obligations (which the Tribunal found had the ability to cause fear in a person).
The applicant also submitted that conduct with the potential to cause “fear” does not amount to an actual or potential risk to the health or safety of an individual and that a lack of evidence that his former partner suffered any psychological harm meant that the Tribunal could not be satisfied that the threshold required to cancel the visa could be met. I do not accept this submission as s 116(1)(e) of the Act only requires the Tribunal to consider risk, not whether specific injury or harm has occurred.
As I have noted above, the terms “health” and “safety” are used in s 116(1)(e) of the Act in their respective ordinary meanings: Newall at [21]. Causing “fear” may constitute a risk to the safety of an individual. The fear itself may cause mental or psychological injury/harm and may pose a risk to an individual’s own sense of safety. As noted above, the threshold for the decision-maker’s state of satisfaction is lower and as such, the absence of evidence to the contrary is unnecessary for reasons which have been explained and are discussed further below (See Leota at [17] to [18] and Cai at [20]).
Further, as the Minister notes in their written submissions, the criminal law prohibits various acts that may cause fear to any person without causing that person physical harm: see, for example, ss 68(1), 71, 74B(2) and 338C(2) of the Criminal Code. It can therefore be implied that causing “fear” is itself a form of harm and a risk to safety.
The Tribunal noted at [24] that the issuance of the restraining order indicates that an assessment was made that the applicant may pose a risk to his former partner and that formal protective arrangements needed to be put in place. It is clear that both the restraining order which prohibited contact between the applicant and his former partner and the applicant’s “protective bail conditions” to not contact his former partner were intended to ensure that the applicant, inter alia, did not endanger the safety and welfare of his former partner, including by having any contact with her. The Tribunal had evidence before it that the Magistrates Court had imposed those obligations on the applicant, and that the applicant had subsequently breached them. It is reasonable to conclude that violating non-contact orders imposed by the courts may have the effect of causing fear to persons who are protected by those orders. As such, it was open for the Tribunal to conclude that the applicant’s breach of those orders suggested that the applicant had engaged in conduct that had the potential of causing “fear” to another person.
Read as a whole, I am satisfied that it was open to the Tribunal to conclude that the applicant’s conduct, which the Tribunal referred to as “anti-social behaviour”, formed a rational and logical basis for the Tribunal to conclude that there was a potential for the applicant to cause fear in, and harm to, another individual, and that his presence in Australia was therefore a risk to the “safety” of that person, being his former partner.
In relation to the Tribunal’s finding that the applicant would present a risk to the safety of children:
(a)the applicant conceded he was in possession of child exploitation material in oral evidence before the Tribunal, while claiming it was only for the purpose of gathering information and of no interest to him;
(b)the Tribunal expressly found that the applicant would have been aware that his possession of child exploitation material was not consistent with Australian law (at [25]); and
(c)on the basis of the applicant’s concession that he had been in possession of child exploitation material and having formed the view that the applicant was aware that this was against the law, the Tribunal found that the applicant had engaged in this conduct “knowingly and intentionally” (at [26]).
Each of those matters was a logical and rational basis upon which the Tribunal came to the conclusion that the applicant posed a risk to the safety of children in Australia. The Tribunal considered the applicant’s risk of engaging in the same behaviour to be “real”. This was sufficient for the Tribunal to conclude that grounds for cancellation arose under s 116(1)(e)(i) of the Act.
The applicant referred to a passage in an academic article titled “Sentencing for child pornography” (2010) ALJ 384 (at p 391) by Kate Warner, which provides:
Child pornography offences, and possession offences, in particular, create real problems for judicial officers in determining an appropriate range of penalties for an offence which has few parallels in the criminal law. This is complicated by the fact that there is some ambiguity about the basis for criminalisation. If it is primarily criminal because it causes harm, the harm in cases of possession of child pornography is indirect and rather remote.
It was submitted that absent a finding that the applicant was responsible for the production of such material (and that the material involved Australian children), there was no logical basis to conclude that the applicant’s possession of child exploitation material presented a risk to the safety of a segment of the Australian community (namely children). I do not accept these submissions: it is apparent that those who seek out such material, for whatever reason, provide an incentive for the production of the material and therefore create a market for the corruption and exploitation of children: See R v Liddington (1997) 18 WAR 394 at 395-396 (Malcolm CJ) and 403 (Ipp J).[2] It is apparent that this is a major reason why knowingly possessing child exploitation material is an offence in all Australian states and territories. As noted in Ms Warner’s article “By progressive increases in the maximum penalty for these offences, parliaments have signalled that it as an offence that is to be regarded seriously” (at p 391). Specifically in Western Australia, s 220 of the Criminal Code provides that:
A person who has possession of child exploitation material is guilty of a crime and is liable to imprisonment for 7 years.
This reflects the seriousness for which possession of child exploitation material is considered in the community.
[2] See also Phintong v R [2011] WASCA 192 at [24] (Mazza JA, McLure P and Buss JA agreeing).
Significantly, the article of Ms Warner did not state that the possession of child pornography causes no harm, but rather that the harm would be “indirect and remote”. It was for the Tribunal, as the finder of fact, to consider the risk to safety in the particular circumstances of this case. Here, where the applicant was found to have engaged in the conduct “knowingly and intentionally”, that risk was found to be real. Accordingly, it was entirely open for the Tribunal to conclude as it did.
I further note that the Tribunal’s conclusions are consistent with the Department of Home Affairs’ Procedures and Advice Manual (“PAM3”), which provides relevant guidance on the meaning of “safety”: in the context of s 116(1)(e). Specifically, PAM3 states:
Possession of child pornography
A visa holder may present a risk to the safety of children, for the purposes of s 116(1)(e), if the visa holder has been found to be in possession of child pornography. This is because there is evidence that possession of child pornography may indicate a higher risk of engaging in child sex offences.
...
Four examples
A delegate may be satisfied that a person's presence in Australia poses a risk to the safety of the Australian community, a segment of the community an Individual or Individuals if:
· the person is found to be in possession of child pornography, as this may indicate a higher risk of engaging in child sex offences. It is therefore open to delegates to find that a person in possession of child pornography may present a risk to the safety of Australian children as a segment of the community
or
· the person has been charged with a sexual offence against a minor and the circumstances of the case are such that there is a possibility that they may commit similar offences against minors generally and may present a risk to the safety of a segment of the Australian community
...
The policy guidelines cited above expressly identify similar conduct to that of the applicant in this case as an example of what would be considered to be a risk to the safety of a segment of the Australian community. It is apparent that the Tribunal was aware of that guidance (CB 201-202 at [26] and [28]). Even accepting that PAM3 is not binding on a decision-maker as it is not given the force of law,[3] and that the application of policy to decisions of this nature should be treated with caution, these guidelines demonstrate that a rational and reasonable decision-maker could come to the same conclusion that the Tribunal did.
[3] COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190; (2015) 236 FCR 148 at [12].
I am satisfied that the Tribunal acted on a correct understanding and application of what s 116(1)(e) of the Act required and that it was open, on the evidence before the Tribunal, for it to find that the applicant’s possession of child exploitation material posed a risk to the safety of children.
Overall, it cannot be said that the Tribunal’s decision was one “at which no rational or logical decision maker could arrive on the same evidence”: Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]. The Tribunal was concerned by conduct that gave rise to charges of aggravated assault, deprivation of liberty, breach of court-imposed obligations and possession of child exploitation material, conduct which the Tribunal found the applicant had engaged in “knowingly and intentionally”. This conduct cannot objectively be seen to be behaviour which did not have the potential to pose a “risk” to the “safety” of an individual (being the applicant’s former partner) or a segment of the Australian community (being children) within the meaning of s 116(1)(e) of the Act.
For the reasons outlined above, I do not accept that the Tribunal misapplied s 116(1)(e) of the Act or that it made an irrational or illogical decision.
Conclusion
The applicant has not established that the Tribunal has committed any jurisdictional error. Accordingly, the Judicial Review Application is dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Dated: 26 October 2021
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