Gong v MIBP
[2016] FCCA 561
•8 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GONG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 561 |
| Catchwords: MIGRATION – Student visa – cancellation – presence of visa holder is or may be a risk, or would or might be a risk, to the health, safety or good order of the community or individual(s) – exercise of discretion – unreasonableness – writs issued. |
| Legislation: Crimes Act 1900 (NSW), ss.91A, 91C Migration Act 1958 (Cth), ss.5, 13, 14, 45, 47, 65, 68, 82(1), 116(1)(e), 118, 148, 189, 198 |
| Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32 |
| Applicant: | YANHONG GONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 160 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 March 2016 |
| Date of Last Submission: | 2 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Lim |
| Solicitors for the Applicant: | Kinslor Prince |
| Counsel for the First Respondent: | Mr P. Herzfeld |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 19 January 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 20 November 2015 in accordance with the law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 160 of 2016
| YANHONG GONG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The essential issue in these proceedings concerns the inferences that may be drawn from the mere fact that a visa holder has been charged with criminal offences. In particular, the question is whether any such inference is sufficient to give rise to the power to cancel a person’s visa under sub-s.116(1)(e) of the Migration Act 1958 (Cth). If that power can arise on the basis of those charges, the issue arises whether, in the circumstances of this case, the decision to cancel was reasonably open to the Tribunal or was otherwise affected by jurisdictional error.
Relevant facts
The applicant is a citizen of the People’s Republic of China who arrived in Australia in July 2013 on a Student visa for the purpose of undertaking postdoctoral research. In September 2014 his car collided with the wall of a house, damaging it and causing a brick to fall on the head of the occupant. The applicant told the police that another person had been driving the car, but that he was too drunk to know who that person was. He was charged with the offence of “Responsible Person/Custodian Not Disclose Driver Details” (“the motor vehicle offence”).
On 4 October 2014 the applicant was also charged with the following offences:
· procure person not prostitute for prostitution;
· cause child 14 years or older and less than 18 years to do an act of child prostitution;
· knowingly deal with proceeds of crime;
· obtain benefit from child prostitution;
· use a child over 14 years to make child abuse material; and
· disseminate child abuse material.
In his submissions, the Minister has referred to these as the “child sex offence charges”. Although I am sure that was simply meant to be a convenient shorthand description, I do not think that it is an accurate description of the charges and will instead refer to the charges simply as “the charges.”
There was evidence before the Court of the factual bases for the charges, however, for reasons that will become apparent, they are irrelevant to the issues for determination and it is unnecessary to refer to them.
On 6 October 2014 the applicant was remanded in custody and released on conditional bail two days later. He waived the right to a committal hearing and stands trial on the offences in April 2016. It is not clear whether he has yet entered a plea, but for present purposes it is sufficient to note that he has consistently claimed that he is innocent of the charges.
On 1 April 2015 a delegate of the Minister made a decision to cancel the applicant’s Student visa, essentially on the basis of the charges (“first cancellation decision”). On 9 April 2015 the Acting Director of Public Prosecutions issued a State Criminal Justice Stay Certificate under s.148 of the Act in respect of the applicant. Such a certificate can be issued in respect of a non-citizen where an authorised official for a State considers, amongst other things, that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State. The applicant cannot be removed or deported while the certificate is in force.
The applicant did not seek merits review of the first cancellation decision. Rather, he applied for both a Partner visa and a Criminal Justice Stay visa. The Criminal Justice Stay visa was refused on 7 May 2015 and the Partner visa application was refused on 13 May 2015. The Partner visa was refused because of the first cancellation decision. The applicant applied to the Migration Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 9 June 2015 the applicant entered a plea of guilty to the motor vehicle offence and was convicted and fined $1500.
On 2 September 2015 the Tribunal affirmed the decision to refuse the Partner visa. The applicant then applied to the High Court for constitutional relief in respect of both the first cancellation decision and the Tribunal’s decision to affirm the decision to refuse to grant the Partner visa.
In the early evening of Friday 20 November 2015, a different delegate of the Minister notified the applicant that he intended to consider whether to cancel the applicant’s Student visa in light of the charges and the motor vehicle offence. After interviewing the applicant for that purpose, the delegate decided that there was a ground for cancelling the visa under sub-s.116(1)(g) of the Act together with sub-reg.2.43(1)(oa) of the Migration Regulations 1994 (Cth), but that the power to cancel ought not to be exercised. In a document prepared by him on 1 December 2015, the delegate explained that, as he did not have the police facts sheets in relation to either of the charges or the motor vehicle offence, he had very little information about the circumstances of either of those matters.
Later on the same evening yet another delegate notified the applicant that she was considering whether to cancel his visa in light of the charges. She, too, interviewed the applicant. She was satisfied that there were grounds for cancelling the visa under sub-s.116(1)(e). In particular, she found that the “fact that the police have concluded that there is a proper basis to bring the charges against [the applicant was] sufficient evidence” to satisfy her that the applicant’s presence in Australia “may be a risk to a segment of the Australian community, that [his] presence might be a risk to the sexual safety of children in Australia.” The delegate then went on to consider the matters put forward by the applicant against cancellation and concluded that “the reasons to cancel outweigh the reasons not to cancel” and so made a decision to cancel the applicant’s Student visa (“second cancellation decision”).
It is, to say the least, curious that two delegates considered the same issue in such close proximity without any relevant change in circumstances. Clearly enough, both delegates were acting on the basis that the first cancellation decision was invalid and of no effect. It may be that the circumstances can be explained by the fact that the Minister had consented to orders quashing the first cancellation decision which, when made by the High Court, would have meant that the applicant had to be released from detention. Those orders were made on the following Wednesday, some five days afterwards, and the review of the Tribunal’s decision relating to the Partner visa was remitted to this Court. In any event, no complaint is made about these events and nothing further need be said about them.
On 25 November 2015 the applicant applied to the Tribunal for review of the second cancellation decision and, on 1 December 2015, he applied for a Bridging visa to enable him to be released from detention. The application for a Bridging visa was refused on 3 December 2015 and the applicant applied to the Tribunal for review of that decision.
On 14 December 2015 the Tribunal affirmed the decision to refuse to grant the applicant a Bridging visa. The essential reason for that decision was expressed in the following passage [after reference to the evidence that a number of people would put up security for the applicant]:
[60] … However, having regard to the serious nature of the charges which the applicant is facing in upcoming court proceedings in January 2016 [ie. the charges] and his involvement in the offence in September 2016 [ie. the motor vehicle offence] the Tribunal concludes there is a high propensity that he may engage in criminal conduct and does not consider that any amount of security will act as an inventive for the applicant to abide by Bridging visa conditions.
The Tribunal was differently constituted for the purposes of the review of the second cancellation decision. It held hearings on 22 December 2015 and 13 January 2016. The second hearing was by telephone because, as the Tribunal told the applicant, it did not hold concerns regarding the credibility of his evidence.[2] On 19 January 2016 the Tribunal made a decision affirming the second cancellation decision.
[2] See the submissions of the applicant’s representative dated 14 January 2016 at Annexure T to the affidavit of Joanne Jennifer Kinslor sworn on 27 January 2016.
It will be necessary in due course to examine the Tribunal’s reasons for its decision in some detail. For present purposes it is sufficient to note the following. First, it found that the ground for cancellation under sub-s.116(1)(e) existed on the basis of three categories of material: the charges, the motor vehicle offence and assessments of risk by other decision-makers in other contexts. Secondly, having found that the ground for cancellation existed, it considered the exercise of the discretion. After dealing with the circumstances that it saw as relevant to that exercise, the Tribunal concluded that the applicant’s student visa should be cancelled. Importantly, its reasons for arriving at that conclusion included the following:
[90]The fact of charges being laid against the applicant concerning sexual crimes against a minor, a conviction on a less serious matter, and the fact that the Tribunal has found that an ongoing risk to some extent to the community exists weigh heavily on the Tribunal’s mind in terms of whether the applicant should hold a Student visa and be studying in Australia. The Tribunal has found no extenuating circumstances.
On 1 April 2016, this Court made orders by consent quashing the Tribunal’s decision relating to the Partner visa and remitted the matter to the Tribunal for consideration according to law.
The parties’ contentions
There are two stages involved in any decision to cancel a person’s visa under s.116 of the Act. First, the determination of whether there are circumstances that give rise to the power to cancel; and secondly, if there are such circumstances, the determination of whether or not to exercise the power. The applicant argues that the Tribunal erred in each of those stages.
In this case, the Tribunal found that the power to cancel the applicant’s visa arose under sub-s.116(1)(e), namely, that:
(e)the presence of its holder [the applicant] 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; or
…
The applicant argued that there were two flaws in the Tribunal’s reasons in the first stage of its decision. First, he argued that, as a matter of construction, this ground cannot arise simply on the basis that there are unproven charges laid against a visa holder. The grounds that enliven the discretion are intended to inform the exercise of the discretion. Accordingly, it was argued, the reference to a "risk" in sub-s.116(1)(e) is not apt to encompass a mere suspicion or a mere possibility that cannot be stated with a degree of definitiveness appropriate to the meaningful exercise of the subsequent discretionary power. The decision-maker will, at the discretionary stage, have to weigh the "risk" against a range of other factors. The statute contemplates that the "risk" is one capable of being intelligibly expressed and of an appreciable degree.
Further, exposure to an appreciable chance of present or future injury or loss, which is what "risk" means, requires some foundation in past events. The "risk" of which sub-s.116(1)(e) speaks is the future or present risk; if the foundation for that risk in past events is itself no more than a matter of "risk" or "possibility", then the requisite future or present risk is made too remote to be cognisable under the Act.
The applicant supported this construction by reference to the principle of legality and, in particular, the protection of the presumption of innocence at common law.
The applicant also argued that the unproven charges, at least without more probative information about the allegations contained within them, were legally irrelevant considerations, wholly extraneous to the s.116 exercise as informed by the subject-matter, scope and purpose of the section and the Act.
The Minister argued that these submissions went nowhere because the Tribunal based its decision on a past event, namely, the laying of charges for serious offences involving a child. Further, he argued that sub-s.116(1)(e) is satisfied not only where the Minister is satisfied that there is a risk, but also where he or she is satisfied that there may be a risk. He argued that the principle of legality did not assist the applicant because the presumption of innocence was simply a matter that informed the burden of proof in proceedings.
The applicant’s second ground concerning sub-s.116(1)(e) was that the Tribunal’s conclusion was unreasonable, in the sense that there was no evident and intelligible justification for it. He argued that there were two bases for the Tribunal’s conclusion, neither of which had any logical basis in the material: first, the Tribunal inferred from the laying of charges that the police had a “reasonable belief” that the applicant had committed the offences; and secondly, it reasoned that the motor vehicle offence showed an uncooperative attitude to the police which supported the possible existence of a relevant risk.
The Minister argued that the laying of charges was not an empty gesture given the existence of prosecutorial guidelines in New South Wales required consideration of certain matters. The tender of those guidelines was objected to by the applicant on the basis that they were not before the Tribunal and so were irrelevant. At the hearing I deferred ruling on the tender in order for full argument to be presented. For the reasons I give below, I reject the tender.
The Minister further argued that the applicant’s submissions mischaracterised the Tribunal’s reasons which, read as a whole, were that the fact of “the child sex offence charges”, coupled with all aspects of the Tribunal’s reasoning concerning the traffic offence conviction, supported the conclusion that the applicant’s presence in Australia may pose the risk identified by the Tribunal, namely a risk to the sexual safety of minors as well as to the community as a whole.
The applicant also raised two grounds in respect of the Tribunal’s consideration of the exercise of the discretion. The first was that the Tribunal relied on the assessment by other bodies of the risk presented by the applicant rather than forming its own opinion on the matter. The second argument was that the Tribunal’s exercise of discretion miscarried for three reasons: first, it exercised the discretion on a misunderstanding of the basis upon which it had found there was a ground for cancellation. In particular, it based its decision on the understanding that it had found that there was a risk whereas in fact it had only found that there may be a risk. Secondly, the Tribunal treated the absence of mitigating factors as adverse to the applicant rather than as neutral. Thirdly, in the circumstances, the decision to cancel was so unreasonable that no reasonable decision maker could have made the decision. It was, he said, using a sledge-hammer to crack a nut.
In answer to the first ground, the Minister argued that the Tribunal’s reasons reveal that it made up its own mind about the relevant risk and, further, that other assessments of risk were relied on by the applicant in any event, making them relevant to the Tribunal’s task. The Minister argued that the second ground relies on too narrow a reading of the Tribunal’s reasons and is, in fact, only an attack on the merits of the decision.
In order to put these arguments into context, it is necessary to briefly set out the relevant statutory provisions.
Relevant statutory provisions
The relevant provisions of the Act were summarised accurately in the applicant’s submissions as follows.
Part 2 of the Act deals, among other things, with the arrival and presence in Australia of non-citizens. Unless a non-citizen in the migration zone "holds a visa that is in effect'', that non-citizen is an "unlawful non-citizen" liable to be taken into immigration detention and removed from Australia: ss.13, 14, 189, 198.
The Act provides for different categories of visa, and a non-citizen who wants a visa must generally apply for a visa of a particular class: s.45. The Minister must consider valid applications for visas: s.47. And he must decide to grant or refuse to grant a visa: s.65.
A visa is in effect as soon as it is granted or as otherwise specified and it can be in effect only "during the visa period for the visa": s.68. The "visa period" ends, relevantly, "when the visa ceases to be in effect": s.5 ("visa period"). A visa that is cancelled ceases to be in effect on cancellation: s.82(1). The Act provides a number of bases on which visas can be cancelled: see, eg, Pt.2, Div.3, Sub-divs.C-H.
Subdivision D of Div.3 of Pt.2 of the Act provides for visas to be cancelled on certain grounds. Sub-section 116(1)(e) is one of those grounds and is set out at [20] above.
The power to cancel a visa under s.116 is not limited or otherwise affected by certain other cancellation powers: s.118.
Sub section 116(1)(e) was repealed and substituted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to that amending legislation, sub-s.116(1)(e) was engaged by a risk to the health, safety or good order "of the Australian community'', and the amendment effectively added the words "or a segment of the Australian community". In addition, sub-s.116(1)(e) was previously engaged where the visa holder's presence in Australia "is, or would be, a risk" and the amendment changed this to "is or may be, or would or might be, a risk".
It may be noted in passing that the first limb of sub-s.116(1)(e) (“is or may be”) is addressed to the circumstances where the applicant is present in Australia and the second (“would or might be”) is addressed to the circumstances where the applicant is outside of Australia.
Both parties relied on the various parts of the Explanatory Memorandum circulated in respect of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth). There, it was explained (at [13]) that this change sought "to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may ... be a risk ... as well as where there is demonstrated to be an actual risk of harm". With respect to the careful argument presented by both counsel, the fact that the amendment lowered the threshold is as plain as a pikestaff and the statement to that effect in the Explanatory Memorandum is unhelpful in, if not irrelevant to, the construction of sub-s.116(1)(e).
Consideration
Grounds 7(a) and 7A: Misconstruction of s.116(1)(e) of the Act and irrelevant considerations
While it is true, as the applicant submits, that the word “risk” entails an element of futurity, the addition of the words “or may be” and “or might be” by the 2014 amendments undermines the balance of the applicant’s arguments. Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
While some might disagree with the scope of the provision, there is no challenge in these proceedings to the power of the Parliament to enact it, and I find that that is the effect of the plain and ordinary meaning of the words in their context and so is the construction required by the correct approach to the issue: Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
Given the plain meaning and scope of sub-s.116(1)(e), I do not consider that the principle of legality assists the applicant. The applicant contended that, if sub-s.116(1)(e) were construed so as to be engaged by the laying of charges, the common law right of the presumption of innocence would be abrogated. There was some debate about the precise scope of the common law right in question. However, I do not need to resolve that issue.
In Momcilovic v The Queen (2011) 245 CLR 1, French CJ explained, at [43], that the principle of legality is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. Crennan and Kiefel JJ said, at [512]:
The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. …
The difficulty with the applicant’s argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8. There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder and there is no requirement that the visa holder be compelled to give any evidence.
For those reasons, both grounds 7(a) and 7A fail.
Ground 7(b): The Tribunal’s satisfaction was unreasonable
As noted above, this ground is that the Tribunal’s satisfaction that sub-s.116(1)(e) was enlivened was unreasonable because it was based on unproven charges and what the Tribunal took to be the applicant’s uncooperative attitude towards the police in connection with the motor vehicle offence. The ground requires some closer attention to the Tribunal’s reasons for its decision insofar as they concern the engagement of sub-s.116(1)(e).
The first matter to note is that, although the Tribunal had the police fact sheet and a Statement of Police which outlined the evidence against the applicant, it expressly indicated that “it would not be drawing additional adverse inference [sic] from this material beyond the evidence already adduced as to the charges laid”: [11] of the Tribunal’s reasons. It is not clear why it took that course. Conversely, as discussed below, it is not at all clear that it did take that course. If it did take that evidence into account it is at least arguable that the applicant was denied procedural fairness. In any event, the applicant did not take that point and I need not consider it further. I simply note that all of the findings made by the Tribunal have to be understood as having been made without reference to any of the details of the circumstances leading to the bringing of the charges.
The Tribunal first set aside the contention that a risk could only be established if the applicant were convicted by a court. It then stated:
[37]… Clearly Police consider that the applicant has a case to answer, including in relation to procuring a child for prostitution and using a child to make child abuse materials, which are serious charges. Those charges indicate at least that the applicant ‘may’ or ‘might’ have acted in an illegal and harmful way towards a minor concerning sexual conduct. This leaves open a clear finding that there ‘may’, or ‘might’ be a risk of such behaviour in the future.
The applicant argued that the first part of this passage presents the crux of the error made by the Tribunal, namely, the inference that the police considered that the applicant had a case to answer. I will return to that submission.
He also argued that the second last sentence showed that the Tribunal wrongly focussed on the past whereas the statute focusses on the future. I disagree with the submission that this reveals error. What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question. That is similar to the logic that underlies the so-called “what if I am wrong” test in refugee law: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 281; Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22 at 575.
The Tribunal next briefly considered the applicant’s grant of bail, accepting that he had complied with the conditions on which it was granted, and the request by the New South Wales Office of the Director of Public Prosecutions for a Criminal Justice Certificate.
It then rejected the submission that it had to be satisfied of the applicant’s guilt on the balance of probabilities before stating:
[41]… The question for the Tribunal is whether it is satisfied that there ‘may’ or ‘might’ be the requisite risk. The Tribunal accepts the Tribunal must make its own assessment, and cannot rely simply an [sic] assessment by the Police. In this case, the Police have reasonable belief that the applicant has committed serious sexually related crimes against a minor. This is what will be taken into account of [sic] the Tribunal.
It will be necessary to return to the second sentence of this passage. For present purposes, the relevant part is the last sentence and, in particular, the reference to the “reasonable belief” of the police. This is different to what was said in the first passage set out above. There, the Tribunal found that the “Police consider that the applicant has a case to answer.” In the second passage, the Tribunal has moved from “consider” to “reasonable belief”. The two are quite distinct. I accept that the fact that charges have been laid is a reasonable basis on which to infer that the police “consider” that there is a case to answer. Obviously, an active step is required in order to lay charges and such a step must, as a matter of logic, be based on some subjective process. It is possible that that process is completely malign; however, it is also possible that it was simply part of the exercise of the charging officer’s ordinary duties. On that basis, it is open to infer that the police considered that there was a case to answer.
However, I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges. That is an objective assessment of the factual basis for the charges and a comparison of that with the integers of the offence. In order for that inference to be drawn, there must be some evidence of the facts upon which the charges were laid and an assessment of those against the elements of the offence.
This is one of the aspects of the Tribunal’s reasons that makes me suspect that the Tribunal did draw upon the facts contained in the police fact sheet and statement.
The Minister submitted that the Tribunal’s finding in this respect was reasonable in light of the prosecutorial guidelines in New South Wales. There are at least two reasons why that is not so and, also, why those guidelines are irrelevant and their tender is rejected. First, the guidelines were not before the Tribunal. For that reason, the Tribunal’s finding cannot have been based on them. Indeed, even if the Tribunal had been aware of them, it made no reference to them. In light of the obligation to refer to the evidence on which material findings of fact are made, I infer that they formed no part of its reasoning. Secondly, the guidelines relate to prosecution for offences by prosecuting authorities, not the laying of charges by the investigating authorities. They are two distinct bodies performing, at least in the case of indictable offences such as those the subject of the charges, distinct duties.
I do not think that the Tribunal’s finding that the basis for the charges was “reasonable” was a mere slip or the product of infelicitous language. Such a slip might have been suggested by the difference between this finding and the earlier finding that the police “consider that the applicant has a case to answer” (see [37] of its reasons set out at [49] above). However, the Tribunal repeated its finding twice later in its reasons: first in connection with the ground for the power to cancel, and secondly in connection with the exercise of the discretion:
[44]… The charges indicate that Police have a reasonable belief …
and
[66]… The Tribunal takes this into account but also takes into account that Police have reasonable [sic] belief that the charges are sustainable.
Admittedly, the Tribunal later refers to a belief it infers is held by the police without reference to the reasonableness of that belief (at [88]); however, that is in a different context and, on balance, does not convince me that its earlier, repeated, reference to “reasonable” was mistaken or unintended.
For those reasons, I conclude that the Tribunal has made a finding of fact which was not based on any evidence. The question, then, is whether that affected the exercise of the Tribunal’s power and so constituted jurisdictional error.
The Tribunal expressed its conclusions about the ground for cancellation in the following paragraphs:
[45]In conclusion, the applicant has actually committed an offence of moderate seriousness and Police believe that the applicant has committed an offence of a very serious nature. In the Tribunal’s view, that assessment cumulatively of past events provides a guide as to future risk. While bail has been granted in relation to the charges, that does not eliminate the risk. There have been two other visas considered for granting to the applicant which assess risk. In both of those considerations, there was found to be either, an ongoing risk of criminal conduct, or a risk to the safety of individuals or people generally.
…
[47]The Tribunal is satisfied that the applicant’s presence in Australia is such that there is, or may be, or would or might be, a risk to both the health, safety or good order of the Australian community as well as a segment of the community. The Tribunal considers that the risk is not only to the sexual safety of minors but extends to the community as a whole.
The critical reasoning is found at [45] of the Tribunal’s reasons. Relevantly, the Tribunal there refers to the fact that the police “believe”, and not to the reasonableness of that belief. However, the fact that it had twice referred to the police’s reasonable belief immediately before this paragraph, makes it sufficiently clear that that is what the Tribunal had in mind in expressing its conclusions. The consequence of that is that the Tribunal’s conclusion that a ground of cancellation arose under sub-s.116(1)(e) was affected by error. Whether that error be identified under the rubric of unreasonableness or some other recognised error does not matter. Indeed, as the Full Court noted in Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, at [44], legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process.
For those reasons, this ground succeeds. That means that it is strictly unnecessary to consider the balance of the grounds. However, as they were fully argued before me, I will deal with them briefly.
Ground 9: The AAT failed to exercise its jurisdiction or took into account an irrelevant consideration, by regarding itself as bound by, or otherwise taking into account, assessments of risk made about the applicant by different decision-makers in different contexts.
There are two parts to this ground. The first is that the Tribunal did not form its own view about the risk posed by the applicant’s presence in Australia but, instead, relied on two earlier assessments of that issue.
The first of the two earlier decisions was that of a delegate dated 7 May 2015 refusing to grant the applicant a Criminal Justice Stay visa. That decision relied upon yet another delegate's assessment of risk in the cancellation of the applicant's student visa on 1 April 2015, which cancellation decision was subsequently quashed by the High Court. The second earlier decision was that of the Tribunal (differently constituted) dated 14 December 2015 affirming a decision of a delegate to refuse to grant the applicant a bridging visa.
The first critical reference to those earlier decisions is at [45] of the Tribunal’s reasons (see [61] above). It is important to understand the context of that reference. The Tribunal referred to those decisions in connection with the applicant’s reliance on the fact that the applicant had been granted bail in connection with the charges. It noted, at [44], that that fact did not preclude the possibility that the applicant may, or might be a risk in the future. It was in support of that proposition that the Tribunal referred to the earlier decisions where different assessments of risk had been made.
Next, is it important to note that the Tribunal acknowledged the defects which the applicant claimed affected those decisions as well as the fact that it “must make its own assessment.” In other words, the Tribunal expressly stated that it was not simply to apply the conclusions reached by other decision-makers.
In order to circumvent this express statement, the applicant relied on the following statement by the Tribunal made later in its reasons:
[80] … Whilst the Tribunal has noted the defects claimed by the adviser in these processes [i.e. the earlier decisions], the Tribunal notes the fact that these processes have occurred. It is not the role of this Tribunal to second-guess those decisions. That would be achieved through judicial review of those decisions. … The Tribunal is not bound by the Bridging visa or Criminal Justice Stay visa decisions.
The applicant argued that, by saying that it could not “second-guess” the earlier decisions, the Tribunal meant that it had to apply them. That submission is wrong for two reasons: first, in light of the arguments made to the Tribunal on the applicant’s behalf, the reference to “second-guess” was only to the legality of the decisions, not to the outcome. That much is confirmed by the reference to judicial review that follows immediately after that statement. Secondly, the meaning suggested by the applicant is directly inconsistent with the last sentence in the paragraph to the effect that the Tribunal is not bound by the decisions, as well as to the earlier statement to the same effect at [45] of its reasons.
The second part to this ground was based on the proposition that the adverse risk assessments made in the earlier decisions were not functionally equivalent to favourable risk assessments that occurred in other contexts (including the decision by a court to grant bail). The asymmetry between the two types of assessment was said to arise from the fact that sub-s.116(1)(e) required the Minister (and the Tribunal) to be positively satisfied of a risk. For that reason, a positive assessment of risk could, without more, be critical to the decision because it might undermine any positive state of satisfaction. By contrast, an adverse assessment could not, of itself, support a reasonable satisfaction of the risk referred to in sub-s.116(1)(e).
There are several difficulties with this argument. Critically, however, the problem is that it doesn’t gain any traction in the facts of this case. The Tribunal did have regard to the adverse assessments as well as to the positive assessments of risk. However, it did so primarily because they were in the material before it and were the subject of submissions made on behalf of the applicant. In the ordinary case, a decision-maker is required to take into account all the information before him or her: Waensila v Minister for Immigration & Border Protection [2016] FCAFC 32 at [14] (Robertson J) referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd 162 CLR 24; [1986] HCA 40 at 45 (Mason J).
Further, the Tribunal had regard to more than the simple fact that there had been particular assessments of risk in other contexts. It noted differences between what it had to decide and the bases for those decisions as well as considering some of the factual matters referred to in those decisions that were favourable to the applicant: see for example [81] of the Tribunal’s decision.
For those reasons, I conclude that the Tribunal did not fall into error in the way in which it considered earlier decisions concerning the applicant.
Ground 10: Miscarriage of the discretion to cancel
There are three parts to this ground. It is convenient to set each one out before dealing with them as a whole.
The first is the argument that the Tribunal exercised its discretion on the basis that an ongoing risk to the community "exists" when it had, in fact, found only that the presence of the applicant in Australia "may or might be" a risk. The argument is based on the statement, at [90], “that the Tribunal has found that an ongoing risk to some extent to the community exists”.
The second is that the Tribunal treated the lack of extenuating circumstances as an adverse factor rather than as a neutral one. It relevantly said:
[89]Adverse to the applicant is the fact that the Tribunal is not satisfied there are extenuating circumstances in relation to the conviction concerning failure to provide driver details in an incident in which a man was injured. There is no evidence before the Tribunal to satisfy it that there are extenuating circumstances or circumstances out of the applicant [sic] control in relation to the charges of the prostitution of minor [sic].
Before turning to the third part of this ground, one matter may be noted about this paragraph that was not part of the applicant’s case. If it was in fact the case that the Tribunal paid no regard to the facts behind the charges, it makes no sense at all to say that there were no extenuating circumstances. Further, the Tribunal appears to have overlooked at this point the fact that the applicant claimed that he was innocent of the charges. I will leave that point to one side.
The third part is that the decision to cancel had no evident and intelligible justification. It was argued that the risk said to enliven the discretion to cancel was a merely potential risk based on unproven criminal charges and a driving offence involving the applicant's car, but in which he was not the driver. It was so slight a risk, reflected in the fact that the applicant was, at the time of cancellation, uneventfully on bail in the community, that it could not justify the serious consequences occasioned by cancellation, which consequences included the "serious hardship" occasioned by the mandatory detention of the applicant, the interruption or cessation of his "important postdoctoral research", the separation of his family, and hardship on, in particular, his wife (who is a permanent resident). The decision was, in other words, using a sledgehammer to crack a nut: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [30] (French CJ) citing Airo-Farulla, "Reasonableness, rationality and proportionality", in Groves and Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines, (2007) 212 at 215.
In my view, the reasons for which the Tribunal decided to affirm the decision to cancel the applicant’s visa reveal jurisdictional error. My reasons differ, to some extent, from the arguments presented by the applicant; however, as I have decided that the decision must be set aside for a reason that was fully argued, I will set out my reasons even though the Minister has not had the opportunity to address some of my concerns.
The first problem is the Tribunal’s statement, at [66], that the “criminal charges against the applicant allege in part that the applicant has been involved in the business of prostitution”. Bearing in mind, once again, that the Tribunal did not draw any adverse inference from the facts behind the charges, it is difficult to see any basis for this finding. The charges themselves do not allege any involvement in a business. There are six separate charges with no indication, apart from the bare reference to child prostitution, that they are related to the same events. While an “act of child prostitution” involves the payment of money (Crimes Act 1900 (NSW) s.91C), the procurement of a person to do such an act does not necessarily involve money (s.91A). Similarly, the crime of obtaining benefit of child prostitution can be committed by a person who knowingly derives a material benefit indirectly from an act of child prostitution. As such, the charge does not, of itself, allege any business or commercial activity undertaken by the applicant.
There is no doubt that it would be open to infer the possibility of a commercial enterprise involving child prostitution, but that is not what the Tribunal did.
Secondly, the Tribunal took into account the fact “that Police have reasonable belief that the charges are sustainable”: [66]. For the reasons I have given above, there was no evidence to support any finding of the reasonableness of that belief.
Thirdly, I agree with the applicant that it was not logically open for the Tribunal to count the lack of extenuating circumstances as a matter adverse to the applicant. It already gave significant weight to the fact and nature of the charges (see [90] of the Tribunal’s decision), to add the lack of extenuating circumstances as it did was to engage in double-counting.
Fourthly, I also agree with the applicant’s submission that the Tribunal changed the basis of its decision. As already noted, in concluding that there was a ground for cancellation under sub-s.116(1)(e), the Tribunal had only found the possibility of a risk. However, in determining the exercise of the discretion, it referred to an “ongoing risk”. While it did qualify that by the phrase “to some extent”, the existence of a risk is distinct from the possibility of a risk. I do not accept that the plain words of the Tribunal were the result of some unhappy phrasing. I think, instead, that it was the result of loose reasoning that revealed that, ultimately, it misunderstood the basis upon which it was exercising the discretion.
In light of the combination of all of those matters, I conclude that the Tribunal’s consideration of its discretion was affected by jurisdictional error. Whether that error be described as a constructive failure to review, irrationality, or in some other way, the number and nature of errors were so serious that they undermined any logical basis there might otherwise have been for the decision.
Finally, given my other findings, I do not need to address the applicant’s proportionality argument other than to note that, while proportionality is a concept used in Australia in various areas of law, in proceedings involving the exercise of statutory discretion, real care must be taken with it in order that the Court remains within the proper limits of judicial review.
Conclusion
The decision of the Tribunal to affirm the delegate’s decision to cancel the applicant’s visa was affected by jurisdictional error. The decision must be quashed and the matter must be remitted to the Tribunal in order for it to complete its duty of review.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 8 April 2016
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