Kamboj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 48
•15 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamboj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 48
File number(s): SYG 296 of 2021 Judgment of: JUDGE STREET Date of judgment: 15 September 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Student (Subclass 500) Visa – where the delegate cancelled the applicant’s visa under s 116 of the Migration Act 1958 (Cth) due to the applicant pleading guilty to three offences – whether the Tribunal improperly imposed an onus upon the applicant regarding his risk to the Australian community or his risk of re-offending – whether the Tribunal’s analysis and decision was legally unreasonable – whether the Tribunal’s finding regarding risk lacked an evident and intelligible justification – no jurisdictional error – amended application dismissed Legislation: Migration Act 1958 (Cth) ss 116, 116(1)(g), 359AA, 476
Migration Regulations 1994 (Cth) r 2.43
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 15 September 2021 Place: Sydney Counsel for the applicant: Mr P Berg Solicitor for the applicant: Jacobs Legal Counsel for the first respondent: Ms N Laing Solicitor for the first respondent: Minter Ellison ORDERS
SYG 296 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAURABH KAMBOJ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The amended application is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 January 2020, affirming the decision of a delegate of the first respondent (“the delegate”) to cancel the applicant’s Student (Subclass 500) Visa (“the Visa”).
Background
The applicant is a citizen of India who arrived in Australia on 7 August 2018.
On 28 February 2019, the applicant pleaded guilty to three offences. The first two offences of stalk/intimidate intended fear physical etc. harm occurred on 1 September 2018 and 30 November 2018. The third offence, which was in relation to possession of child abuse videos, occurred on 14 December 2018.
On 13 January 2020, a notice of intention to consider cancellation of the Visa was sent to the applicant. On 3 February 2020, the delegate made a decision to cancel the applicant’s Visa.
On 8 February 2020, the applicant applied to the Tribunal for review.
Issues
In substance, there are two issues in the present case advanced on behalf of the applicant which are said to give rise to a jurisdictional error.
The first is that it is asserted that the Tribunal erroneously imposed an onus on the applicant in respect of the absence of a likelihood of a risk of re-offending.
The second was that the Tribunal’s reasoning, in respect of there being some risk of the applicant re-offending, was legally unreasonable by reason of lacking a probative basis, lacking an evident and intelligent justification, being speculative or capricious, by reason of a failure to identify the nature of the risk, by reason of the failure to identify a probative basis for the evaluation of the risk, and by reason of an alleged incorporation of an evaluation of risk said to be of a sexual nature in children or minors. It was submitted that there was no such offence and that the decision of the Tribunal, in evaluating the risk, had failed to address the risk of re-offending but had instead addressed some other risk.
The Tribunal’s Decision
In its reasons, the Tribunal summarised the background to the application for review. The Tribunal turned to the question of whether the grounds for cancellation exist in relation to s 116(1)(g) of the Act and the grounds identified in r 2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal identified conviction in respect of the two counts of stalk/intimidate intended fear of physical harm and the one count of possess child abuse material. The Tribunal referred to the plea of guilty on 28 February 2019, by which it is apparent that there was a severity appeal, which resulted in a successful reduced sentence on 31 July 2019. The Tribunal noted that the applicant acknowledged the convictions at the hearing before the Tribunal and, accordingly, the Tribunal found that the ground for cancellation was made out.
The Tribunal then turned to the issue of whether or not the Visa should be cancelled. The Tribunal identified having a discretion in that regard. The Tribunal also took into account the matters referred to in the Department’s Procedures Advice Manual (“PAM3”), which relevantly included the circumstances in which the ground for cancellation arose, as well as a number of other factors including “any other relevant matters”.
The Tribunal made reference to the New South Wales Police factsheet that had been sent to the Tribunal by the applicant. The Tribunal summarised those facts, relevantly, in relation to the first two offences, of the victim being aged 12 and a female. The Tribunal referred to the statement of facts, which clearly identifies that the applicant appreciated that the victim was a school child.
The Tribunal referred to the circumstances in which the applicant obtained the victim’s phone number and the applicant’s attempts to contact the victim. The victim did not reply, however, the victim’s father told the applicant to stop contacting the victim. The applicant did not do so, as revealed by the two offences to which the applicant pleaded guilty. The second occurred, clearly, after the events of being told to stop contacting the victim by the victim’s father.
The Tribunal referred to the enticements by the applicant to encourage the victim to meet him in a park after school. The Tribunal recorded, in relation to the statement of facts, that the applicant acknowledged that the victim’s father had texted him and told him to not speak to the victim, and that the applicant said he was sorry.
The Tribunal identified from the statement of facts, a search of the applicant’s mobile phone and the identification of pornographic material, including several videos of child abuse material. The Tribunal made reference to the applicant’s assertion that the child abuse material on his phone was sent via friends on WhatsApp. The applicant stated that he did not know why he saved it, but it was clear that the applicant was able to identify that the children in the video are 12 to 14 years old. The applicant also stated he was aware of the offences and knew it was wrong and that it was not allowed in India or Australia.
Consistent with s 359AA of the Act, the Tribunal identified putting it to the applicant, as a matter of fairness, that the New South Wales Police fact sheet, together with the convictions, indicate that there were ongoing attempts by the applicant to solicit the attention of a 12 year old girl, despite being warned by her father to stop. The Tribunal also identified that child sex abuse material was found on the applicant’s phone when the police arrested the applicant.
The Tribunal explained that the information was relevant because the factual circumstances and convictions demonstrate inappropriate behaviour towards a minor which, combined with the presence of the child sexual abuse material on his phone, could demonstrate a sexual interest in minors. As a matter of procedural fairness, the Tribunal also identified for the applicant, at the hearing, that the facts and convictions could cause the Tribunal to conclude that the applicant is not a desirable person to remain in Australia on the Visa or otherwise, including because he is of potential ongoing risk to minors.
The Tribunal referred to in the material that it received one day prior to the hearing, including submissions, a psychologist’s report, and supporting statements from the applicant and other individuals. The Tribunal summarised the written information, including an alleged “Sincere Apology” letter by the applicant.
The Tribunal also referred, in detail, to the content of the psychological report dated 15 May 2019. It is apparent that this was a report prepared for the sentencing appeal. The Tribunal noted that the report showed that the applicant had a Personality Assessment Screener (PAS) score of 23, indicating moderate potential for emotional and/or behavioural problems. The Tribunal identified that the applicant only scored 21 on the Depression and Anxiety Stress Scale, indicating extremely severe symptoms of depression and anxiety, and moderate symptoms of stress.
The Tribunal identified that, in the psychologist’s opinion, the applicant was functioning in a regressed emotional psychological state at the time of the offence and was seeking to connect with younger persons in keeping with his lack of emotional maturity. The psychologist’s report stated that the applicant is estimated to have been functioning no better than a 12 to 14 year old. The Tribunal noted that the psychologist’s report said that the applicant appeared psychologically immature and lacking emotional resilience. The Tribunal made reference to the applicant having had time to develop more positively, and recorded the applicant having a high level of guilt, shame and remorse. The Tribunal also observed that the psychologist stated that, in his opinion, the likelihood of the applicant re-offending is minimal, making reference to the applicant’s guilt, shame, remorse coupled with available psychological treatment.
The Tribunal summarised the other material, including an affidavit from the applicant’s father and mother, dated 13 January 2021. The affidavit identified that the applicant’s parents were aware of the charges against the applicant.
The Tribunal then referred to the applicant’s oral evidence, in which he accepted that he made the biggest mistake and stated that he was only 18 at the time. The Tribunal referred to the applicant taking full responsibility for what happened. The Tribunal referred to the applicant’s intention that it will not happen again, to complete his studies and to return to India.
The Tribunal then turned to the circumstances in which the ground for cancellation arose and whether there were extenuating factors beyond the applicant’s control. The Tribunal referred to the submission advanced on behalf of the applicant, which referred to the applicant’s psychological conditions, purporting to explain the circumstances in which the ground for cancellation arose. The submission advanced on behalf of the applicant also referred to the applicant’s alleged maturity that he had subsequently obtained and alleged insight in respect of his offending behaviour.
It was also contended that the applicant had disclosed the offence to his parents, and therefore had engaged in appropriate help-seeking behaviour for the purpose of getting support and managing his responsibilities. The affidavit of 13 January 2021 refers to the applicant’s parents’ awareness of the charges, not the fact sheet. The applicant had in fact been convicted back in February 2019 and had pursued an appeal in respect of which, at the time of the psychologist’s report appeared for that appeal, it was apparent that the parents were not aware of either the charges or the conviction.
The Tribunal referred to the applicant’s evidence that he does not have a sexual interest in minors and his explanation that he approached the girl because he missed contact with his young relatives. The applicant claimed that he had no desire to hurt the girl but wanted to be her friend and knows that it was a mistake to do this.
The Tribunal raised with the applicant at the hearing whether he had received ongoing psychological support, which he had been recommended to undertake by the psychologist. This was clearly a reference to the psychologist’s report prior to the sentencing, upon which the applicant received community service orders, and could have taken steps to obtain psychological treatment which was the subject of that recommendation. The applicant indicated that he had not done so.
The Tribunal referred to the submissions advanced from the applicant concerning his immaturity at the time he arrived. It was contended that the applicant had not undertaken the psychological support as recommended because, culturally, this is better achieved through advice from family members.
It was contended that the applicant has subsequently revealed the offences to his family, subsequent to the psychological consultation, which was after the original conviction and custodial sentences. There is no psychological evidence to support the submissions advanced in respect of the cultural contention of the applicant’s assistance and rehabilitation being better achieved through the advice of family members. The family members were not aware of the full statement of facts or of the fact of the actual convictions, rather than the charges, as referred to in the affidavit and the subsequent appeal in respect to the first convictions and the lesser sentences then imposed.
The Tribunal made reference to accepting the diagnosis of mental health conditions as explaining, to some degree, the circumstances leading to the convictions.
The Tribunal made reference to the purpose of the applicant’s Visa and a contention that there were exculpating factors in relation to not being involved in a registered course of study for a period. The Tribunal accepted that difficulty in relation to the applicant having been subject to a custodial sentence which was imposed and the appeal process.
The Tribunal identified the applicant’s enrolment being cancelled on 14 February 2020 for non-payment of fees. The Tribunal referred to having discussed this matter with the applicant at the hearing and did not draw an adverse inference by reason of the cessation of study.
The Tribunal referred to the hardship that would be caused to the applicant from a cancellation of the Visa. The Tribunal was not persuaded that the applicant will not be able to make a life for himself without tertiary qualifications in India, but accepted that the applicant would be subject to hardship if the Visa was cancelled.
The Tribunal then identified that a relevant discretionary factor in this matter is the ongoing risk of the applicant to the Australian community, particularly to underage girls. The Tribunal identified raising with the applicant that the fact that he had a mental age of a 14 year old in the context of the offences could create concern of an ongoing risk for the applicant in the Australian community, notwithstanding that two years had passed.
The Tribunal referred to the applicant’s indication of remorse for what he had done. The Tribunal stated that the applicant cannot prove that he will not do it again but that his intention is to focus on studies and that he is now more mature.
The Tribunal then referred to the psychologist’s report, which indicated an opinion that ongoing psychological treatment for the applicant, together with his level of guilt, shame and remorse, would mean that the likelihood of re-offending would be minimal. This is a reference to the second-last dot point that the Tribunal had summarised in relation to the psychologist’s report on page 5 of the Tribunal’s reasons. The Tribunal identified that, at the hearing, the applicant indicated that he had not sought ongoing psychological support as recommended.
The Tribunal referred to the submission that this is substituted by advice obtained from the applicant’s family and friends. However, the Tribunal was not satisfied that the advice from family and friends is an appropriate substitute for professional mental healthcare. The Tribunal found that it is adverse to the applicant, in terms of being of an ongoing risk, that he did not take up the psychologist’s recommendation to seek ongoing psychological help to mitigate that risk.
The Tribunal referred to a submission that, because the applicant received a community corrections order on the appeal, he is not a risk to the community. The Tribunal also referred to the contention that the applicant has individuals who can support him in Australia and a support network which is better placed to mitigate the risks that led to the ground for cancellation of the Visa. The Tribunal accepted that the relatives in Australia are in a position to provide support to the applicant and have attested to his character.
The Tribunal then said that, considering all of the evidence relating to an ongoing risk from the applicant to minors, the Tribunal accepts contrition on behalf of the applicant, and that he has indicated that he is not a future risk. The Tribunal identified it was concerned that, at the time of the offences, the applicant was determined as having a mental age of only 14 years old, which could suggest ongoing immaturity on the part of the applicant, notwithstanding the period of time that had now passed.
The Tribunal identified that it was concerned that the applicant did not take up the psychologist’s suggestion to seek ongoing counselling support which was a key recommendation made in terms of mitigating the risk.
The Tribunal then identified that, while it did not consider that the risk of the applicant’s re-offending is a high risk, the Tribunal considered that there is some risk of re-offending in light of all the circumstances. The Tribunal found that the fact that there remained at least some risk of the applicant re-offending is not insignificantly adverse in terms of discretionary factors. The Tribunal referred to the submission that the applicant’s Visa was not one which was the subject of offences that mandate cancellation.
The Tribunal then referred to weighing the discretionary factors. The Tribunal found that the circumstances leading to the ground of cancellation being made out and the underpinning facts leading to the convictions demonstrate, in the Tribunal’s view, conduct which undermines, to a degree, the applicant’s entitlement to remain in Australia on the Visa, notwithstanding the diagnosed mental health conditions.
The Tribunal also acknowledged that some time had passed to facilitate increasing the applicant’s maturity and that the applicant had demonstrated remorse or contrition. However, the Tribunal considered that there is some ongoing risk to the community in Australia posed by the applicant. The Tribunal observed that these matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.
The Tribunal referred to a degree of remorse and contrition, and the applicant’s mental health conditions, and accepted that there was not insignificant hardship to the applicant if the Visa was cancelled. The Tribunal made reference to the fact that the applicant had individuals who have attested to his character, and are in a position to provide support in Australia. The Tribunal accepted that the applicant has disclosed the offences to his family in India and that they are providing support. The Tribunal accepted that the offences did not amount to a substantial criminal record and did not ultimately result in a custodial sentence.
After balancing all of these factors, the Tribunal determined that the matters in favour exercising the discretion to cancel the Visa outweigh the matters against exercising the discretion. Accordingly, the Tribunal affirmed the decision of the delegate under review.
Before the Court
These proceedings were commenced on 24 February 2021, and an amended application was filed on 22 July 2021.
The Grounds
The Grounds in the amended application are as follows:
Ground 1
1.The Tribunal failed to exercise its jurisdiction. The role of the Tribunal was to exercise the discretion under Section 116 Migration Act 1958. The applicant’s offence against the law of the State of NSW is a jurisdictional fact. The Tribunal considered the risk to the Australian community of re-offending to be a relevant discretionary factor. The Tribunal’s decision was adverse to the applicant because it found there is some risk of re-offending. The Tribunal erred in that ‘some risk of re-offending’ is a consequence of the jurisdictional fact. No applicant can submit to the contrary, that there is no risk of re-offending. The discretion the Tribunal stated was an empty gesture with no possibility of a finding favourable to the applicant.
Ground 2
2.The decision of the Tribunal was not legally reasonable. The Tribunal identified the risk of the applicant re-offending as a relevant discretionary consideration. The finding of the Tribunal that there is some risk of re-offending was fatal to the application. The discretion was legally unreasonable in that no applicant can submit to the contrary, that there is no risk of re-offending.
Ground 3
3.The decision of the Tribunal showed actual bias. The Tribunal identified the risk of the applicant re-offending as a relevant discretionary consideration. The finding of the Tribunal that there is some risk of re-offending was fatal to the application. The Tribunal’s mind was closed to persuasion: No applicant could make a submission on risk which met the standard of satisfaction which the Tribunal set.
There was an obvious disconnect from the three Grounds identified in that amended application and the two issues identified above. At the commencement of the hearing today, Mr Berg, counsel on behalf of the applicant, confirmed that Ground 1 should be understood to be the onus point as raised in his submissions and that Ground 2 should be understood as embracing the legal unreasonableness arguments, which the Court has summarised above. Mr Berg conceded that there was no case of actual bias or apprehended bias that was being pressed, as referred to in Ground 3. The Court has treated Ground 3 as abandoned.
Ground 1
Consistent with the request of the Court, Mr Berg first addressed the onus argument referred to above in Ground 1. Mr Berg drew heavily in that regard upon the reasoning, it was referred to me, by Mortimer J in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, which squarely identified that there was no onus on an applicant to establish that he posed no risk to the Australian community or that he posed an acceptable risk.
Mr Berg placed reliance upon the Tribunal’s reasoning in paragraphs 24 to 27 of its reasons, contending that the Tribunal placed an onus on the applicant that he posed a risk to the Australian community. Paragraph 24 of the Tribunal’s reasons was an identification of the conduct of the hearing and steps taken in accordance with the requirements of procedural fairness to raise issues of concern by the Tribunal with the applicant.
The conditional or future possibility of adverse findings identified there in paragraph 24 by the Tribunal did not identify that the Tribunal was placing any onus on the applicant, but rather identified that the Tribunal was raising with the applicant an issue as to possible adverse findings that might be made to give the applicant an opportunity to respond to the same. The raising of this issue is a not a basis to find that the Tribunal in the present case imposed an onus on the applicant to establish that he was of no risk to the Australian community or posed no risk of re-offending.
The reference to the psychologist’s report and giving the applicant an opportunity to comment on the adverse material referred to in paragraph 25 of the Tribunal’s reasons is, again, consistent with the taking of steps of procedural fairness, and does not support the proposition of the Tribunal imposing of an onus upon the applicant.
The summary of the documents in paragraph 26 of the Tribunal’s reasons does not advance the argument of an alleged onus because it reflects a fair summary of the content of that material and reveals that there was a genuine intellectual engagement by the Tribunal with that material.
What is said in paragraph 27 of the Tribunal’s reasons summarises the applicant’s evidence in relation to having made the biggest mistake, and again does not reflect language supporting the imposition of an onus upon the applicant.
In paragraph 47 of its reasons, the Tribunal again refers to the applicant contending that he cannot prove that he will not do it again, but that his intention is to focus on his studies and that he is now more mature. That is a reference to the applicant’s evidence and is not the imposition of an onus by the Tribunal upon the applicant. On a fair reading of the Tribunal’s reasons as a whole, it is apparent that the Tribunal did not impose any onus upon the applicant in determining, upon the material, the correct and preferable decision. No jurisdictional error as alleged in Ground 1 regarding the issue of an onus is made out.
Ground 2
Mr Berg’s submits that the decision is affected by legal unreasonableness. It is contended that the Tribunal, in its analysis of risk, had failed to engage in an analysis of the risk and that it failed to identify a probative basis for that analysis of risk. Those arguments are without substance. It is apparent that the Tribunal carefully addressed the risk of re-offending and found that there is not a high risk of re-offending. However, the Tribunal held that there is some risk of re-offending in light of all of the circumstances. That finding of some risk of re-offending in all of the circumstances includes the Tribunal’s reasoning referring to the psychologist’s report that there was some risk, and the steps that the applicant needed to take to mitigate the risk, which the applicant had not taken.
There is a probative basis for the Tribunal’s finding that there is some risk in light of the psychologist’s evidence and in those circumstances it cannot be said that the finding lacks an evident and intelligible justification. Nor can it be said that this was a finding to which no reasonable decision maker could so decide. It was not just logical and rational, but it was reasonable, on the material before the Tribunal, to find that there was some risk of the applicant re-offending. That is because the Tribunal had identified the psychologist’s report in relation to the identification of the risk of re-offending being minimal, and the steps that could be taken to further address that risk, which the applicant had not taken. In that regard, the Tribunal’s finding that there was some risk of the applicant re-offending was not speculative or capricious. It was a finding based on the evidence which the Tribunal had identified and was properly open to the Tribunal.
Mr Berg also contended that the Tribunal had deflected itself from assessing the risk of re-offending because of the reference in the procedural fairness analysis to the convictions and factual circumstances, possibly supporting that the applicant had a sexual interest in minors. That was a evident and obvious inference from the material, in which the applicant had sexual child abuse material on his mobile phone, which was the subject of the third conviction, as well as having on his mobile pornographic material, as well as the applicant’s knowledge of that child abuse material relating to underage children, and further the applicant’s interest in the child victim in the present case. The inference drawn was open to the Tribunal and the Tribunal properly performed its statutory review obligation in determining the correct and preferable decision.
Mr Berg submitted that, no matter how contrary to moral standards or depraved, having a sexual interest in children was not of itself a criminal offence. It was contended that the Tribunal had then evaluated a risk of the applicant having sexual interest in children rather than the risk of re-offending by committing another criminal offence.
A fair reading of the Tribunal’s reasons does support that submission. Rather, the Tribunal was making the obvious nexus that, if a person has a sexual interest in minors, it impacts on the risk of re-offending by committing another criminal offence. On a fair reading, the Tribunal correctly identified a risk to the Australian community that it evaluated in respect of the applicant’s risk of re-offending. It was not a finding of there being some risk of the applicant having a sexual interest in children.
The Court does not accept that there was any legal unreasonableness in the adverse findings by the Tribunal, as contended on behalf of the applicant. The Court finds that no jurisdictional error as alleged by Ground 2, and that no jurisdictional error as summarised in the issues identified above, is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 September 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 9 November 2021
0
1
2