Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
File number:
VID 288 of 2017
Judge:
KENNY J
Date of judgment:
11 January 2018
Catchwords:
MIGRATION – Where applicant’s visa automatically cancelled under s 501(3A) of the Migration Act 1958 (Cth) - application for judicial review of Minister’s decision not to revoke cancellation decision under s 501CA(4) –Minister addressed statutory question – no jurisdictional error arising from misunderstanding of expert opinion or confusion of the risk that a person poses to the Australian community with the likelihood that that person may re-offend.
2.Any further hearing of this proceeding be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an application for review of a decision not to revoke the cancellation of the applicant’s Class BS Subclass 801 Partner (Migrant) visa (partner visa).
The applicant’s partner visa was cancelled on 10 March 2016 by a delegate of the respondent Minister (Minister) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act), on the basis that the applicant did not pass the character test since he had been convicted of sexually based offences involving children, within the meaning of s 501(6)(e) of the Migration Act. The decision not to revoke the cancellation decision was made by the Minister, acting personally, on 13 February 2017.
The applicant, by an amended originating application filed on 28 July 2017, seeks an order that the decision of the Minister be quashed, and an injunction…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Case
[2018] FCA 7
Decision Date
CaseChat Overview and Summary
The applicant, a citizen of the People’s Republic of China, has challenged the Minister for Immigration and Border Protection’s decision not to revoke a visa cancellation order made under section 501(3A) of the Migration Act 1958 (Cth). The applicant, who married an Australian citizen and has four children, was convicted of sexual offences against his stepdaughters in 2015. The Minister’s decision to maintain the visa cancellation order, which was made in 2016, was based on the applicant’s criminal conduct and the risk he posed to the Australian community. The applicant sought judicial review of this decision, arguing that the Minister misunderstood expert opinion and confused the risk of reoffending with the risk posed to the community.
The court was required to determine whether the Minister had made a jurisdictional error in his assessment of the risk the applicant posed to the Australian community. This involved examining the Minister’s consideration of the expert reports and the sentencing judge’s findings, as well as the statutory framework under which the decision was made. The court had to ensure that the Minister properly addressed the statutory question and did not confuse the likelihood of reoffending with the risk posed to the community.
The court found that the Minister had properly addressed the statutory question and did not make a jurisdictional error by misunderstanding the expert opinion or confusing the risk of reoffending with the risk posed to the community. The Minister had considered the differing expert opinions and the sentencing judge’s remarks, and concluded that the applicant presented a low-moderate risk of reoffending, which would increase if he returned to his family. The court held that the Minister’s assessment of the risk posed to the community was within his jurisdictional authority and did not involve a misunderstanding of the expert evidence or a conflation of the statutory criteria.
The court dismissed the application for judicial review and stood over the consideration of Ground 3 pending the outcome of Falzon v Minister for Immigration and Border Protection. The court also adjourned any further hearing of the proceeding to a date to be fixed.
Orders
Orders of the court
1. Ground 3 of the applicant’s amended application for judicial review be stood over for mention on a date to be fixed, not sooner than seven days after the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017).
2. Any further hearing of this proceeding be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The applicant, by an amended originating application filed on 28 July 2017, seeks an order that the decision of the Minister be quashed, and an injunction restraining the Minister from removing the applicant from Australia pending the outcome of these proceedings. On 17 March 2017 the applicant filed an affidavit in support of his application. BACKGROUND The applicant is a citizen of the People’s Republic of China. He married his wife, who is an Australian citizen, on 10 May 2005. He was granted a permanent spouse visa on 5 October 2007. The applicant and his wife have two children from their relationship, and the applicant’s wife has two daughters from a previous relationship. In 2015 the applicant pleaded guilty to six sexual offences committed against his two stepdaughters between 2005 and 2014. On 15 June 2015, the County Court of Victoria imposed a total effective sentence of imprisonment of nine months, with a Community Corrections Order of three years. The sentencing judge had before her a report of Mr Cummins, forensic psychologist, and a report of Mr Drake, senior clinical psychologist. In dealing with these reports, the sentencing judge said: Mr Cummins provided a report in this matter, having seen you on 14 January 2015 []. You initially told him that you did not know why you offended against the victims, but when questioned further you admitted you received sexual gratification from committing the offences. Mr Cummins performed some formal assessments on you, one of which put your risk of sexual reoffending at zero. Mr Cummins said that he thought this test underestimated the risk.After considering the results of another test that he administered, Mr Cummins was of the view that you presented a low-moderate risk of re-offending. Mr Cummins said that you had a specific sexual problem in terms of being sexually attracted to your stepdaughters. This much seemed to be evident from your offending, I would have thought.You and your wife told Mr Cummins that you had a healthy sexual relationship with one another, which you said was the case at the time you committed the offences. Mr Cummins observed that because of your poor command of English any offence specific treatment would have to involve a Mandarin speaking psychologist, which would not be available in any standard group based program. Mr Cummins did not find that you had any mental health or psychological difficulties which might help explain your offending.I sought further assistance in terms of diagnosis and perhaps motivations for offending through Forensicare and have now received a report from a Chris Drake, Senior Clinical Psychologist, dated 5 June 2015. That report says that you do not have any mental illness or psychological issues which might help explain your offending. Mr Drake said that even though you experienced a satisfactory sexual relationship with your wife during the period of offending, that this appeared to be insufficient, leading you to seek out other sources of sexual activity, being your stepdaughters. He said that you fell within a group which had a low recidivism rate when compared with other offender groups. He said that your risk was even lower because you had no criminal history and you only offended against family members.Subsequently, he said that in view of your wish to return home where your own children were, your risk of recidivism would increase to moderate. However, he also said that your appreciation of the negative impacts of your offending would be a protective factor. In short, you had a deviant sexual arousal in respect of your stepchildren, notwithstanding that you had a normal sex life with your wife. Rather than seek sexual gratification with other adult females, you turned to your stepdaughters.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Further submissions were made on the applicant’s behalf on 20 October 2016, enclosing another letter from Dr Chan, a further report by Ms Wallis, certain medical records, and a letter from the applicant’s accountant about the applicant’s business.THE MINISTER’S DECISION On 13 February 2017, the Minister decided not to revoke the original decision to cancel the applicant’s partner visa. The Minister accepted that the applicant had made representations as required by s 501CA(4)(a) of the Migration Act. The Minister was satisfied that, as the applicant in fact accepted, the applicant did not pass the character test for the purposes of s 501CA(4)(b)(i); and that whether or not the Minister would decide to revoke the visa cancellation decision would be determined by reference to whether the Minister was satisfied that there was “another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii). The Minister considered the best interests of the applicant’s four minor children, the expectations of the Australian community, the strength, nature and duration of the applicant’s ties to Australia, the impact on Australian business interests, the impact on victims, the extent of impediments that the applicant would face if removed, and the protection of the Australian community. In considering the protection of the Australian community, the Minister considered the applicant’s criminal conduct, and the risk the applicant posed to the Australian community. It is the latter aspect of the Minister’s reasons that is the focus of this appeal. In assessing the risk the applicant posed to the Australian community, the Minister had regard to the sentencing judge’s account of the reports of Mr Cummins and Mr Drake, as well as the report of Dr King. The Minister observed that the medical opinions differed, and “given the significant discrepancy between the ages of the girl identified as the foundation of the repression and of [the] step-daughters when the applicant first offended against them”, he was “unable to accept a specific casual factor” in the applicant’s offending. The Minister noted that “both Mr Cummins and Dr King assessed that specific treatment would lower [the applicant’s] risk of recidivism and I accept those findings”. The Minister noted Mr Cummins’ overall assessment that the applicant presented a “low-moderate risk of re-offending”. The Minister noted Mr Drake’s opinion that the applicant “fell within a group which had a low recidivism rate” and that his risk was lower still because he had no criminal history and only offended against family members. At the same time, the Minister noted Mr Drake’s opinion that because the applicant wished to return to his family, his risk of recidivism would increase to moderate, although the applicant’s “appreciation of the negative impacts of his offending would be a protective factor”. The Minister also had regard to the sentencing judge’s remarks, which referred to the applicant’s repeated wrongdoing notwithstanding his awareness of “the wrongfulness of [his] actions after each episode of offending” and her Honour’s statement that this gave her “some cause for concern, especially seeing you wish to re-engage with your family”.