FMV17 v Minister for Immigration
[2019] FCCA 186
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 186 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of bridging (subclass 050) visa – extension of time application – extension granted – substantive hearing – whether Tribunal misapplied s.116(1)(e) of the Migration Act 1958, which concerns the good order of the Australian community, by considering that the provision would be satisfied by the adverse reactions of members of the community, rather than by the actions of the visa holder himself – whether the adverse reactions of members of the community must be reasonable to satisfy the provision – whether the Tribunal was obliged to identify the segment of the Australian community the good order of which might be at risk – whether the Tribunal fettered its discretion – whether the Tribunal’s decision lacked any evidence or intelligible basis – whether the Tribunal failed to consider the medical evidence before it. |
| Legislation: Migration Act 1958, ss.116, 477(1), 477(2), 501 Federal Circuit Court Rules 2001, r.44.05(2)(c) |
| Cases cited: ATR15 v Minister for Immigration and Border Protection [2016] FCCA 1089 |
| Applicant: | FMV17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2752 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 November 2018 |
| Date of last submission: | 13 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the applicant: | Siobhan Kelly |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Graeme Hill |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 15 December 2017 and amended on 23 October 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2752 of 2017
| FMV17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
There was before the court an application for an extension of time in which to file an application seeking review of a decision made by the Administrative Appeals Tribunal, and, if the extension of time were granted, an application for review of a decision made by the Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection to cancel the applicant’s bridging (subclass 050) visa.
At the hearing, the Minister said he was not able to consent to the extension of time being granted, as the applicant had not complied with the requirement in r.44.05(2)(c) of the Federal Circuit Court Rules 2001 to file an affidavit explaining his delay. However, the Minister did concede that the applicant clearly had an arguable case. The Minister did not seek to resist the court granting the extension of time, and the hearing being confined to the substantive issues. However, the Minister did ask, if the court were so inclined, to give reasons in the reserved judgment for the extension of time. The court made orders at the hearing on 13 November 2018 granting the extension of time, and the reasons for that decision follow.
Extension of time application
The Tribunal’s decision was made on 4 October 2017. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 15 December 2017. Consequently, the application was 37 days late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court will consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the parties of the grant or refusal of an extension of time;
d)the public interest in there being a timely end to litigation about the efficacy of the acts or decisions of public bodies or officials; and
e)the merits of the substantive application.
As stated, the delay was 37 days.
The applicant filed an affidavit which was sworn or affirmed on 12 December 2017 at Yongah Hill, Western Australia. However, it did not give any explanation for the delay. In his written submissions, the applicant said that he was in immigration detention during the relevant time. That is likely to be true, as the case concerns the cancellation of the applicant’s bridging visa. In any event, the Minister did not dispute it. I infer from that that it is true that the applicant was in immigration detention at relevant times. The applicant did not say, but implied, that there are obvious difficulties for people in immigration detention filing material. I accept that.
The applicant also said in his written submissions that he has well-documented and significant mental health difficulties. At paragraph 27 of the Tribunal’s decision, the Tribunal accepted psychiatric evidence to the effect that the applicant has bipolar 1 disorder and an acquired brain injury. The applicant did not say, but implied, that these issues added to his difficulties in filing his application within the time allowed. I accept that.
Obviously, the applicant would be severely prejudiced if an extension of time were not granted, if, in fact, his substantive application would be successful. The Minister did not point to any prejudice from the grant of an extension of time. There is an obvious public interest in there being a timely end to litigation about the efficacy of the acts or decisions of public bodies or officials.
The Minister conceded that the substantive application is arguable.
In all the circumstances, on balance, it seems to me that it is necessary in the interests of the administration of justice to grant the extension of time in this matter. The delay is relatively minor. I accept that the explanations for the delay, although not on affidavit, are true. They are also adequate. The prejudice to the applicant of not granting an extension of time could be severe, depending on whether his substantive application would actually be successful. There is no known prejudice to the Minister. The need to bring this type of litigation to a timely end can be accommodated, as the delay was not great. As the Minister conceded, the substantive application is arguable.
Background
The applicant summarised the background to the matter in his written submissions as follows:
3.The applicant is a citizen of Iran, born on 29 March 1983 in Mashad, Razavia Khorasan and of Khavari ethnicity.
4. On 24 July 2013, the applicant arrived in Australia. He was, by operation of the Migration Act 1958 (Cth) (the Act), an irregular maritime arrival.
5. While living in Iran, the applicant was an adherent of the Shia Muslim faith. After arriving in Australia, the applicant renounced Islam and now identifies as an atheist.
6. On 30 March 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV), subclass 790. In general terms, the applicant claimed to fear harm based on:
(a) his ethnicity;
(b) a data breach that occurred in February 2014;
c) apostacy; and
(d) his mental health.
7. On 5 May 2017, the applicant was granted a subclass 050 (Bridging (General)) visa (the Bridging Visa).
8. On 1 September 2017, the Department received a report from the Eastern Area Mental Health Service that caused a delegate of the Minister for Immigration and Border Protection to form the opinion that the applicant’s presence 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 Australia community. Consequently, on 14 September 2017, the applicant was given notice of intention to consider cancellation of the Bridging Visa and, on that same day, was interviewed in relation to that notice.
9. On 14 September 2017, the Bridging Visa was cancelled under s 116 of the Migration Act.
10. On 15 September 2017, the applicant applied to the AAT for review of the decision to cancel his Bridging Visa. On 5 October 2017, the AAT affirmed the decision of the delegate to cancel the applicant’s Bridging Visa under s 116 of the Migration Act.
11. On 29 January 2018, the applicant was interviewed by a delegate of the Minister for Immigration and Border Protection in relation to his application for a SHEV. On 5 February 2018, the Department received post-interview submissions from the applicant’s representative, along with a letter from Dr David Harms, a psychiatry registrar from the Refugee Health and Wellbeing Clinic. That letter, among other things, confirmed that the applicant suffers from Bipolar 1 Disorder.
12. On 12 February 2018, the applicant sent an email to the Department, which elaborated on the reasons his Bridging Visa was cancelled.
13. On 6 April 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a SHEV. On 16 April 2018, the matter was referred to the Immigration Assessment Authority (IAA).
The Immigration Assessment Authority affirmed the refusal of the safe haven enterprise visa. The applicant has sought review by this court of the Authority’s decision. That matter was heard on the same day as the present matter, and is the subject of a separate decision, namely, DJY18 v Minister for Home Affairs & Anor [2019] FCCA 185.
Ground of cancellation
The ground of cancellation relied upon in this case was the ground set out in s.116(1)(e), of the Act, which provided at the relevant time that:
(1) Subject to subsections (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[.]
The notice of intention to consider cancellation of the applicant’s bridging visa set out the following in relation to why a ground of cancellation appeared to exist:
On 01SEPT2017 the Department received information from Eastern Area Mental Health Services stating the following: [the applicant], further referred to as the visa holder, had disclosed he had strong urges to rape 3 females in the past, but restrained himself from doing so. One of the three females was a 15 year old adolescent on 26/07/2017 at the Springvale Library.
Information stated that on 3 occasions the visa holder has been in the company of 3 females he has targeted for assault but managed to restrain himself from doing so. An incident report was sent to Victoria Police.
The Health service and reporting persons are concerned that the visa holder may become an offender due to his previous history and the characteristics that he is currently displaying. Victoria Police consider the visa holder’s ‘thoughts’ place him as a Significant High Risk to the community as a sex offender against women and minors.
The visa holder has stipulated to his counsellor that his ‘urges’ have increased recently, stating ‘I fear that my urge to rape a woman is getting stronger, I will offend. I am now trying to avoid crowded places and I sit on the train in carriages where I am by myself. I am scared I will do something bad as I get older as I am finding it harder to meet people’.
I therefore believe the visa holder’s presence 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.
Consequently, his visa is liable for cancellation under s116(1)(e)(i).
The cancellation decision record included the following summary of why the applicant considered grounds for cancellation did not exist, why his visa should not be cancelled, and the hardship he would suffer if his visa were cancelled:
The visa holder considers grounds for cancellation do not exist as he denies ever making any allegations regarding urges to rape women.
The visa holder claimed he was misunderstood or misinterpreted. He claims that all his conversations with health professionals are without the use of an interpreter and that he must of (sic) been misunderstood. He went further, claiming that his caseworker wants to run away from him and get rid of him. I don’t know why he said this. If you look at it from another angle, the problem is magnified because the psychiatrist made it such a problem. The visa holder stated that “I only said it to inflict a shock to the psychologist as she was not doing her duties as well as she could.”
The visa holder [un]equivocally denied ever making any claims of urges towards raping women and questioned the professionalism of his case workers.
The visa holder also claimed the allegations resulted from racial discrimination but was unable to substantiate any evidence to support his claim.
The visa holder claimed he has considered self harm on a number of occasions and explained that he just wants to contain everything inside himself and not cause harm to others and just kill himself instead. When asked to explain what harm to others he was referring to, the visa holder could did not provide an answer, and stated he has never harmed anyone. (sic)
…
Health reports received have corroborate[d] that [the applicant] has been having suicidal thoughts due to his guilt generated from his urges to commit rape.
The delegate found that grounds for cancellation did exist, for the following reasons:
On 01SEPT2017 the Department received information from Eastern Area Mental Health Services stating the following: [the applicant], further referred to as the visa holder, had disclosed he had strong urges to rape 3 females in the past, but restrained himself from doing so. One of the three females was a 15 year old adolescent on 26/07/17 at the Springvale Library.
Information stated that on 3 occasions the visa holder has been in the company of 3 females he has targeted for assault but managed to restrain himself from doing so. An incident report was sent to Victoria Police.
The Health service and reporting persons are concerned that the visa holder may become an offender due to his previous history and the characteristics that he is currently displaying. Victoria Police consider the visa holder’s ‘thoughts’ place him as a Significant High Risk to the community as a sex offender against women and minors.
The visa holder has stipulated to his counsellor that his ‘urges’ have increased recently, stating ‘I fear that my urge to rape a woman is getting stronger, I will offend. I am now trying to avoid crowded places and I sit on the train in carriages where I am by myself. I am scared I will do something bad as I get older as I am finding it harder to meet people’.
Furthermore, health reports corroborate that [the applicant] has been having suicidal thoughts due to his guilt generated from his urges to commit rape.
I therefore believe the visa holder’s presence 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.
I therefore find grounds do exist for cancellation.
The Tribunal’s reasons
The crux of the Tribunal’s reasoning is at paragraph 22 of its reasons for decision, which is as follows:
The Tribunal acknowledges the conflicting accounts as to whether [the applicant] disclosed urges to rape. To some extent it is unnecessary for the Tribunal to conclude further in relation to this. This is because it is clear that [the applicant’s] admissions to the Tribunal, and previously to Monash Health, mean that his presence in Australia at least may or might be a risk to the good order of the Australian community. That is, [the applicant] has expressed thoughts of indecently assaulting a child in a public place, namely the young child in the library. The Tribunal considers, whether or not [the applicant’s] presence in Australia is a risk to the safety of the Australian community, it at least may or might be a risk to the good order of the Australian community. That is because of what the Tribunal considers to be, at the least, the risk of an adverse reaction by members of Australian society to his presence.
That is, the Tribunal did not resolve the question of whether the applicant might be a risk to the health or safety of any person because he might rape or otherwise harm that person. Rather, the Tribunal considered that the applicant’s presence in Australia might be a risk to the good order of the Australian community, because the applicant’s presence in Australia posed the risk an adverse reaction by members of Australian society.
That approach was based on two Federal Court decisions, namely, Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 53 ALD 32; (1998) 159 ALR 405, a decision of Goldberg J, and Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624, a decision of Branson J. The Tribunal discussed those decisions in paragraph 8 of its reasons for decision, which was as follows:
Under s.116(1)(e) the question is whether 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. In Tien v Minister for Immigration and Multicultural Affairs (1998) ALR 405 Goldberg J considered the expression “good order of the Australian community” and noted that it is juxtaposed to the words “the health, safety” of the Australian community so that it has a “public order element”: it requires there to be an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society [at 418-419]. These remarks were adopted by Branson J in Newall v MIMA [1999] FCA 1624. At [30] her Honour stated in effect that a decision maker might be satisfied that the presence of an applicant in Australia might “create difficulties … in relation to the values, balance and equilibrium of Australian society” based on the risk of an adverse reaction by certain members of Australian society to the applicant’s presence in this country, rather than on concern about the applicant’s likely or possible conduct.
Ground 1
The first ground of review in the application filed on 15 December 2017 and amended on 23 October 2018 (“the application”) is:
The Second Respondent erred by constructively failing to exercise its jurisdiction by misconstruing section 116(1)(e) of the Migration Act 1958 (Cth).
Particulars
(a)The Second Respondent reasoned that it was “clear” that certain admissions said to have been made by the applicant “mean that his presence in Australia at least may or might be a risk to the good order of the Australian community” because of “the risk of an adverse reaction by members of Australian society to his presence”.
(b)Properly construed, s 116(1)(e) is not concerned with an “adverse reaction” by member[s] of the Australian community, and the Second Respondent erred in applying that standard.
(c)The Second Respondent was required to, but did not, consider the question by reference to reasonable members of the Australian community.
(d)The Second Respondent was required to identify the relevant segment of the Australian community, and to state the basis on which the applicant’s presence poses a risk of an “adverse reaction” in relation to that segment. The Second Respondent did nothing more … [than] posit that there might be an adverse reaction by “members of Australian society”.
The applicant submitted that the Tribunal erred in three ways in relation to ground 1, namely:
a)the anticipated adverse reaction of members of the Australian community does not fall within the concept of good order, properly construed;
b)the phrases in s.116(1)(e) of the Act of the Australian community and a segment of the Australian community are to be read as reasonable members of the Australian community and reasonable segments of the Australian community; and
c)the Tribunal failed to identify the segment of the Australian community the good order of which was put at risk by the applicant’s presence in Australia.
Both parties accepted that Goldberg J’s reasoning in Tien was correct. However, the applicant contended that Branson J’s reasoning in Newall extended the reasoning in Tien and was wrong and should not be followed. The Minister submitted that Newall was correctly decided. The Minister acknowledged that Newall was not an appeal decision, so it is not strictly binding on this court. However, the Minister submitted that, because Newall was correctly decided, the court should follow it.
Judge Harland, of this court, did follow Newall in ATR15 v Minister Immigration and Border Protection [2016] FCCA 1089. The applicant submitted that ATR15 was not correctly decided and I should not follow it. The Minister maintained that ATR15 was correctly decided.
At the time Tien and Newell were decided, s.116(1)(e) of the Act was in narrower terms than it was at the time of the present Tribunal’s decision. The provision at the time Tien and Newell were decided was as follows:
(1) Subject to subsections (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 would be, a risk to the health, safety or good order of the Australian community; or
…
In Tien, Goldberg J said at (1998) 89 FCR 80 at 93 to 95:
… The expression “good order of the Australian community” is not defined in the Act. I was not referred to any judicial consideration of this particular expression. It must be construed in the context in which it appears, that is, juxtaposed to the words “the health, safety” of the Australian community. In that context it has, in my opinion, a public order element, that is to say it requires there to be an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities. For example, a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts or was inciting people in the community to violence could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community. It should be emphasised that it must be the presence of the visa holder “in Australia” which constitutes or would constitute the risk to the good order of the Australian community.
…
… It was open to Ms Leonardi to find on the material and information available to her that Mr Tien had been involved in the use by a non-citizen of false travel documentation for the purpose of entering Australia but, in my opinion, such a finding does not mean that Mr Tien’s presence in Australia is or would be a risk to the good order of the Australian community.
As I have already observed, the expression “good order of the Australian community” requires a consideration of issues similar to those which arise on a consideration of the expression “public order”. That is to say one is concerned with activities which have an impact on public activities or which manifest themselves in a public way. Such activities are contemplated in s 501 which gives the Minister particular grounds on which to cancel a visa. …
…
However the existence of s 501 does not limit or narrow the construction to be placed on s 116(1)( e) because s 118 provides that the powers to cancel a visa under ss 109, 116, 128, 134, 140 and 501 are not limited to or otherwise affected by each other. …
In Newall, Branson J said:
22. It is appropriate for me to adopt the same construction of the expression “good order of the Australian community” in s116(1)(e) of the Act as Goldberg J unless I am satisfied that his Honour was clearly wrong (see Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 and the authorities there cited). I am not so satisfied.
…
30.… I am not persuaded that it was not open to the delegate to be satisfied that the presence in Australia of a person who has relatively recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the “health, safety or good order of the Australian community” within the meaning of s116(1)(e) of the Act. In particular, it seems to me, it was open to the delegate to be satisfied, having regard to the seriousness of the offences committed by the applicant, and the fact that he was, as it seems, still on parole licence in respect of such offences in December 1998, that the presence of the applicant in Australia as an authorised visitor might “create difficulties ... in relation to the values, balance and equilibrium of Australian society” (per Goldberg J in Tien at p419). Such satisfaction might be based on the risk of an adverse reaction by certain members of the Australian society to his presence in this country in the circumstances referred to above, rather than on concern about the likely or possible conduct of the applicant in Australia.
It can be seen that Branson J somewhat extended the view taken by Goldberg J. While Goldberg J gave the example of a visa holder inciting violence while in Australia, Branson J considered that it was sufficient that the visa holder’s presence in Australia, because of his previous actions, might cause an adverse reaction from members of the Australian community.
In ATR15, Judge Harland said:
17. The applicant attended the scheduled fortnightly meeting with his case officer at the Adult Migration Education Service office (“AMES”). … The applicant made comments in English “I hate Australian’s [sic] and I want to join Isis the Islamic States group and kill Australian’s [sic]” and “if I see Tony Abbott somewhere I will kill him”.
…
51. At [29] the Tribunal referred to Tien and Newall and found:
[O]n the evidence before it, the Tribunal finds that whether or not Mr [ATR15’s] presence in Australia is a risk to the safety of the Australian community it is a risk to the good order of the Australian community. That is because of what the Tribunal considers to be, at the least, the risk of an adverse reaction by certain members of the Australian society to his presence.
…
53. The applicant argues that the Tribunal erred when interpreting good order by taking Newell’s Case (sic) to mean that the risk of an adverse reaction to the visa holder’s presence in Australia (sic). The applicant argues that this is (sic) goes beyond what is stated in Tien and Newall.
…
56. The first respondent argues that the Tribunal did not interpret good order too narrowly and did consider the surrounding circumstances. It is clear from reading the decision that the Tribunal did identify the (sic) context in which the threats were made and considered the material including the email from the applicant’s former case worker who wrote that it was out of character for the applicant.
57. At [22] of the Tribunal’s decision when assessing good order and quoting from the two cases the Tribunal member concluded that the risk is about “the risk of adverse reaction by certain members of the Australian society based to the applicant’s presence in this country rather than on the concern about the applicant’s likely or possible conduct.” In my view that is an appropriate assessment consistent with Newall’s Case.
58. It is not difficult [to imagine] particularly in light of recent world events and the Lindt café enquiry that if the Australian public were to be aware of the threats the applicant uttered that in some quarters there would be unrest and a risk to safety and good order of the Australian community. It is not all sections of the Australian community. Some may well be swayed by the applicant’s personal circumstances, including his refugee status, his distress and mental health, others would not. One only has to look at media reports in the recent times (reasonable or not) to imagine how sections of the public would react. It is important to note that there is no suggestion in the section 116(1)(e) itself (as it then was) nor in either of the Federal Court decisions that reasonableness factors into this consideration. It does not refer to a reasonable member of the public.
The applicant argued that Newall purported to apply Tien but in fact misread Tien and expanded it, and for that reason Newall should not be followed. That does not seem to me to be a sound basis for not following Newall. Successive Federal Court judges are perfectly entitled to expand upon the reasoning of earlier judges, provided that they remain within the limits of the applicable legislation.
Although s.116(1)(e) of the Act was amended in 2014, after Tien and Newall were decided, it does not seem to me that the amendments make Tien or Newall distinguishable. The amendments do not bear upon the present issue.
The applicant argued that Tien correctly required that the relevant risk needed to stem from an activity of the visa holder rather than the response by the community, and that to the extent that Newall and ATR15 decided otherwise, they were wrong.
The applicant submitted that it would be an odd result if a person could have their visa cancelled under s.116 of the Act because of possible anticipated adverse reactions of the Australian public, while a person would not fail the character test in s.501 of the Act because of possible anticipated adverse reactions of the Australian public. The applicant noted that s.116 of the Act listed fairly mundane grounds, such as non-compliance with visa conditions, while s.501 of the Act listed much more significant grounds, such as crimes against humanity.
I accept that would seem to be an odd result. However, the Act could provide for an odd result, if that is what the Parliament intended.
The Minister argued that the adverse reaction test applied by the Tribunal was derived from Newall, which was followed by ATR15, and therefore the Tribunal’s approach was correct. However, that argument does not take account of the fact that Tien, Newall and ATR15 are not binding on this court. Nevertheless, this court should follow those cases unless it is satisfied that they are plainly wrong.
I can see some merit in the applicant’s argument. At first blush, it seems unfair that a person’s visa could be cancelled, not because of what he might do himself, but because of the possibly illegal, but certainly disruptive, actions of others in reaction to the person’s presence in Australia. However, that is what s.116(1)(e) of the Act permits, in its clear terms. If the Parliament had intended to confine s.116(1)(e) of the Act to the visa holder’s actions, it would have been easy enough to say so. That provision is clearly intended to permit the cancellation of a person’s visa where that person’s presence in Australia would provoke disorder in Australia, such as through encouraging violent political or racist protests.
I am not persuaded that Tien, Newall or ATR15 are plainly wrong or wrong at all. Consequently, I follow them. The first aspect of ground 1 is not made out.
In relation to the second aspect of ground 1, the applicant submitted that the proper construction of s.116(1)(e) of the Act required that the adverse reaction of the Australian community, or a segment of it, be a reasonable reaction. However, that cannot be right. Actions that disrupt good order are, almost by definition, unreasonable. If people took exception to the applicant’s presence in Australia, and wrote letters to the editors of newspapers, complained to their Members of Parliament, or peacefully engaged in lawful protests in the streets, those actions would be reasonable. And they would not disrupt the good order of the community. On the other hand, violent protests in the streets would disrupt the good order of the community and would not be reasonable. I am unable to think of any adverse reaction that would disrupt the good order of the community but that would be reasonable. It seems to me that s.116(1)(e) of the Act is intended to avoid disruptions to the good order of the community, which, almost inevitably, would be unreasonable. This aspect of ground 1 is not made out.
In relation to the third aspect of ground 1, the applicant asserted that the Tribunal was obliged to identify the segment of the Australian community that might have an adverse reaction to the applicant’s presence in Australia. The applicant did not explain why that interpretation of s.116(1)(e) of the Act was correct. I do not accept the applicant’s assertion. I can see no justification for it.
Ground 2
The second ground of review in the application is:
The Second Respondent erred by… [constructively] failing to exercise its jurisdiction and/or by impermissibly fettering the exercise of the discretion conferred by s 116(1) and by reaching a conclusion that lacked any evident or intelligible basis.
Particulars
(a)The Second Respondent had regard to the “circumstances in which the ground of cancellation arose”. The Tribunal treated that consideration as being conclusively determined by reference to the “seriousness” of admissions said to have been made by the applicant, without having regard to other matters which bore on the said circumstances.
(b)The Second Respondent placed significant emphasis on the “seriousness” of the admissions made by the Applicant, to the effect that the Applicant had experienced sexual thoughts about females on three occasions, including on one occasion a 14 year old girl, across the course of two years. The Second Respondent made no express finding about the level of seriousness of such thoughts. Nonetheless, the Second Respondent reasoned that “seriousness of the admissions” was evident on the face of the admissions.
Having found that a ground of cancellation existed, the Tribunal then considered whether to exercise its discretion to affirm the cancellation of the applicant’s bridging visa. In that context, the applicant noted that the Tribunal had chosen to consider various matters suggested as relevant in the Department’s Procedures Advice Manual, known as PAM3, including the circumstances in which the ground of cancellation arose. The Tribunal then said at paragraph 28 of its reasons for decision:
The Tribunal has considered the circumstances in which the ground of cancellation arose. It is sufficient in this context to reiterate the seriousness of the admissions made by [the applicant] (see para 22 above).
In paragraph 22 of its reasons for decision, the Tribunal expressly declined to make findings on whether the applicant had disclosed urges to rape. However, the Tribunal noted in paragraph 22 of its reasons for decision that the applicant had admitted to the Tribunal and Monash Health that he had had thoughts of indecently assaulting a particular 14 year old girl in a particular library. Those were the admissions that the Tribunal referred to when it mentioned the seriousness of the admissions.
The applicant argued firstly that, as the Tribunal had chosen to take into account the circumstances in which the ground of cancellation arose, the Tribunal was obliged to take into account all of the circumstances, including that the applicant had accepted treatment for his thoughts and had expressed a wish to not act on them.
I do not accept that the Tribunal failed to take into account all of the circumstances nominated by the applicant. The Tribunal referred to them in detail in its reasons for decision. It was not necessary for the Tribunal to restate them in paragraph 28 of its reasons. The Tribunal was entitled to mention there only the circumstance of the seriousness of the admissions made by the applicant.
That is especially so as the Tribunal did not purport to set out in paragraph 28 of its reasons all of the circumstances in which the ground of cancellation arose. The Tribunal expressly said that it had considered the circumstances in which the ground of cancellation arose. It then said:
It is sufficient in this context to reiterate the seriousness of the admissions …
By using the words, It is sufficient, the Tribunal was signalling that it was not restating all of the circumstances of the case, being circumstances that it had already set out. The Tribunal was entitled to take that approach. There is no reason to doubt that the Tribunal had considered the circumstances of the case, as it claimed to have done, in circumstances where it had set out the relevant material in its reasons for decision.
In any event, the applicant argued that the Tribunal’s reasons for decision revealed illogicality and unreasonableness in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18, because the Tribunal did not make an express finding about the seriousness of the applicant’s admissions. I do not accept that it was necessary for the Tribunal to specify precisely how serious the applicant’s admissions were. Expressing an urge to sexually assault a 14 year old girl in a library is self-evidently serious. The Tribunal was not obliged to say any more about that point than it did.
The applicant said that it was also unreasonable in the Li sense for the Tribunal to assess the applicant’s urges as serious in the absence of the medical context. I do not accept that argument. The Tribunal was very well aware that the applicant had accepted treatment for his urges and had expressed a wish not to act upon them. The Tribunal quoted the psychiatric evidence to that effect in paragraph 17 of its reasons for decision in the following terms:
…[The applicant’s] sexual ideas as he presented them are seen as egodystonic ideas which he has struggled with, which he has discussed with his treating team, has accepted treatment for and ideas which he has expressed a wish not to act on. He has a history of good engagement with the Refugee Clinic, compliance with his psychiatric medication (as evidenced by therapeutic levels of his mood stabilising medications, lack of need for hospitalisation or intensive community support) and an awareness of his bipolar disorder and the importance of treatment.
The Tribunal was under no obligation in paragraph 28 of its reasons for decision to repeat that information.
Ground 2 is not made out.
Ground 3
The third ground of review in the application is:
The Second Respondent failed to give real and genuine consideration to the medical evidence before it.
Particulars
(a)The Second Respondent accepted that the applicant suffers from bipolar disorder and has an acquired brain injury, and had other medical evidence before it, relating to the Applicant.
(b)The question of “risk” was a mandatory consideration for the Second Respondent. It was required to have regard to all evidence before it that bore on that consideration. It did not do so, considering that the Applicant’s conduct itself was a total answer to the question of whether the statutory criterion of “risk to good order” was met.
(c)If it was permitted to conclude that an “adverse reaction” from the Australian community was sufficient to engage s 116(1)(e) of the Act, the Second Respondent was required to assess whether that reaction would be elicited from the relevant segment of the Australian community in light of all of the circumstances, including the basis of the applicant’s presence in Australia, the applicant’s health condition and his medical circumstances.
The applicant argued that the Tribunal was obliged to, but did not, consider all of the material, including the medical evidence, in determining whether there was a risk to the good order of the Australian community. The applicant argued that the Tribunal, impermissibly, considered only the applicant’s conduct, being his admission that he had had an urge to sexually assault a 14 year old girl in a library.
I do not accept that the Tribunal only considered the applicant’s conduct in determining that there was a risk. The Tribunal set out in its reasons for decision all the medical and other evidence that the applicant said it should have considered. There is no reason to doubt that the Tribunal took it into account in assessing the risk.
The Tribunal’s conclusion at paragraph 32 of its reasons for decision was that the applicant’s presence in Australia may or might be a risk to the good order of the Australian community. That finding was in accordance with the Act. The Act does not require any particular degree of risk. It was open to the Tribunal to consider that, notwithstanding the medical evidence, the applicant’s presence in Australia remained a risk to the good order of the Australian community. This aspect of ground 3 is not made out.
The applicant further argued that the Tribunal was obliged to, but did not, consider whether the adverse reaction would be elicited from the Australian community in the light of all of the circumstances of the case, including the applicant’s health condition and so on.
However, as discussed above, the Tribunal did consider all the necessary matters in deciding whether there was a risk to the good order of the Australian community. It was not necessary for the Tribunal to consider whether there would be an adverse reaction. A risk of a disruption to the good order of the Australian community was enough. This aspect of ground 3 is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 1 February 2019
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