Minister for Immigration, Local Government and Ethnic Affairs v Batey
[1993] FCA 100
•08 MARCH 1993
Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: KEITH ERNEST BATEY
No. G 152 of 1992
FED No. 100
Number of pages - 25
Migration
(1993) 112 ALR 198
(1993) 40 FCR 493
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Foster(1) and Cooper(1) JJ.
CATCHWORDS
Migration - Appeal - Administrative Appeals Tribunal recommends against deportation - Minister does not accept recommendation - judicial review of Minister's decision - whether Minister's decision "manifestly unreasonable" - whether the trial judge erred in law in concluding that the exercise of power had been "so unreasonable that no reasonable person could have so exercised the power" - relevant factors - risk of recidivism - meaning of a "real" risk.
Migration Act 1958 section 12
Administrative Decisions (Judicial Review) Act 1977 Section 13
Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Boughey v. The Queen (1986) 161 CLR 10
Luu v. Renevier (1989) 91 ALR 39
Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40
HEARING
BRISBANE, 19 November 1992
#DATE 8:3:1993
Counsel for the Applicant: Mr G. Crooke QC and Mr M. Boulton
Solicitors for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Ms S. Kieffel QC and Mr R. Devlin
Solicitors for the Respondent: Carberry's Solicitors
ORDER
THE COURT ORDERS: 1. The appeal is allowed.
2. The orders appealed from be set aside and in lieu thereof it be ordered that the application be dismissed.
3. The respondent pay the appellant's costs of the appeal and the costs of the proceedings appealed from.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SPENDER, FOSTER AND COOPER JJ. The respondent is a citizen of the United Kingdom. He came to Australia with his parents and brother in 1971 when aged seven years. The family returned to England in 1973. Sometime after, his parents separated, and, his father returned to Australia to live. In December, 1977 the respondent came to Australia to live with his father.
In November, 1983 the respondent was convicted on his own plea of rape, attempted rape, sodomy, deprivation of liberty and unlawful use of a motor vehicle. He was sentenced to a total of 13 years imprisonment. The offences occurred in May, 1983 and were committed against an 18 year old girl. The respondent was then aged 19. An appeal against sentence was dismissed.
During his term of imprisonment the respondent was convicted of further offences: taking part in opposition to lawful authority (June, 1983); attempted escape (November, 1988); unlawful assault doing bodily harm to prison guards during attempted escape (February, 1989).
In July, 1986 the delegate of the Minister ordered deportation of the applicant pursuant to section 12 of the Migration Act 1958.
In 1991 the respondent applied for, and was granted by the Administrative Appeals Tribunal, an extension of the time in which to apply to the Tribunal for a review of the deportation order.
In February, 1992 the Tribunal recommended that the deportation order be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation. Thereafter substantial submissions were made on behalf of the respondent to the Minister and additional material provided in response to issues raised by the Department. By letter dated 17 August, 1992 the Department advised the respondent's solicitors that the Minister had decided to affirm the deportation order. On 10 September, 1992 the Minister provided a written statement of reasons for his decision in response to the respondent's request pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").
On 21 September, 1992 the respondent filed an application under the ADJR Act to review the decision of the Minister that the deportation order in respect of the respondent be affirmed. On 30 September, 1992 the application was amended to seek, in lieu of the original review sought, a review of the decision of the Minister that the deportation order in respect of the respondent not be revoked.
On 2 October, 1992 a single judge of the Court (Beaumont J.) after hearing the application ordered that the matter be referred to the Minister to be dealt with in accordance with law and further ordered that the Minister pay two-thirds of the respondent's costs. The Minister appeals against these orders in the present appeal.
Before Beaumont J. the respondent argued principally two grounds: firstly, that the exercise of the power by the Minister was so unreasonable that no reasonable person could have so exercised the power; secondly, that there was a breach of the rules of natural justice in that the respondent was denied procedural fairness. Beaumont J. rejected the second ground.
In determining the first ground, Beaumont J. considered three main questions. They were (1) the seriousness of the offence; (2) the risk of recidivism; and (3) hardship. His Honour concluded that the decision of the Minister in relation to the seriousness of the offence could not be considered "perverse" in the sense explained by the authorities. He further concluded that the decision of the Minister on the issue of hardship was not manifestly unreasonable. In respect of the issue of the risk of recidivism, his Honour concluded that the Minister had made a logical error in his process of reasoning with the result that the decision was "manifestly unreasonable". His Honour referred the matter to the Minister for further consideration. In doing so his Honour apparently was of the view that the Ministers exercise of power had been "so unreasonable that no reasonable person could have so exercised the power" (S.5(2)(g) ADJR Act). The correctness of this decision was the subject matter of the appeal.
The Tribunal in its reasons of 28 February, 1992 came to the following conclusion as to the possibility of recidivism :-
"As to the possibility of recidivism there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed. The deep, thoughtful, comprehensive and thoroughly professional testimony of Mr Lannen is most compelling in this regard. Certainly it took the applicant a number of years to realize the error of his ways, to show remorse, to commence rehabilitation and to become involved in constructive and worthwhile thinking and action. This he then did and has continued to do in a most energetic, all-embracing, positive, and successful fashion. Indeed the extent of the change is quite remarkable. He has become committed to improving himself and to the cementing of his own rehabilitation. He is fully aware of his make-up, the importance of avoiding alcohol in particular, and appears to be anxious to prove to others as well as himself just how successful his rehabilitation has become. I am most impressed by his change of attitude and the achievements he has accomplished in furtherance of this change. I believe accordingly, that the possibility of recidivism is quite minimal".
On 10 September, 1992 the Minister, pursuant to section 13 of the ADJR Act, gave written reasons for his decision not to revoke the deportation order against the respondent. We set out at length the relevant parts of his reasons :-
"I assessed the seriousness or nature of the offences by reference to the circumstances of the offence, the sentencing judge's remarks, and the length of the sentence imposed.
The circumstances of the offence as described by the victim show an attack of uncontrolled physical and sexual violence. The trial judge and the judges of the Court of Criminal Appeal were unanimous in their condemnation of the attack perpetrated by Mr Batey. In particular, their Honours mention the brutality and the random nature of the attack. A sentence of thirteen years' imprisonment imposed by the trial judge and endorsed by the Court of Criminal Appeal indicates how seriously the crime was viewed. In addition, the AAT stated the following : "I would add that it was also cowardly. The actions of the applicant at the relevant time appear to have been impulsive and not pre-meditated. The effect of alcohol and drugs was no doubt a contributing factor but was not an excuse by any means". The AAT's conclusion on the seriousness of the crime, one which Mr Batey's legal representatives submit I should adopt is as follows :
"My view is then that whilst the offences are serious a consideration of the remorse the applicant has displayed concerning them, his facing up to his problems head on and dealing with them with vigour and success, and his very praiseworthy efforts and apparent victory with his own rehabilitation reduce by a not insignificant degree the importance one should attach to this seriousness in the context of considering deportation for this man". In addition, I am asked to accept the AAT's conclusion, stated at page 65 of its decision: "Whilst the crimes in themselves are very offensive and abhorrent I do not consider that in isolation these offences should be regarded as sufficient to justify deportation. Mr Batey was just 19 at the time of the offences and his background to that juncture whilst not of a high standard, was not such as to cause alarm to the community". I have not considered the offensiveness or abhorrence of the crime in isolation. I do not agree that the seriousness of the crime can be mitigated by events occurring subsequent to the commission of the crime. The importance of any consideration of the seriousness of the crime is that it indicates the nature of the sexually and physically violent act Mr Batey is capable of committing. I endorse the above comments which deal with the seriousness of the crime. It is difficult to imagine a more serious commission of the offence of rape. The sentence of thirteen years imprisonment is an indication of their Honour's view as to the extreme seriousness of the crime. The attack occurred suddenly and without warning and, as far as the victim was concerned, was completely unprovoked. The nature of the crime when viewed in conjunction with the risk of recidivism makes it unacceptable that the community should bear any risk.
The AAT concluded that the risk of recidivism in Mr Batey's case was "quite minimal". It appears that substantial weight was placed on the evidence of Mr Lannen. The Tribunal also assessed Mr Batey's demeanour and considered that he had shown a remarkable change in attitude. Mr Batey's legal representatives, since the AAT decision, have submitted that I should place great weight on Mr Lannen's report. In particular, I am asked to consider Mr Lannen's statement in his report of 19 August 1991 which compares Mr Batey to other members of society. It states : "His successful completion of the Sex Offenders Program and current testing give no indication of likelihood of re-offending or being dependent on alcohol. On the contrary, given his incarceration and extensive therapy and deep remorse he is less likely to offend then general members of society". (My emphasis added).
A statement of his order ignores the fact that Mr Batey has, in the past, committed a horrendous crime. Mr Batey has shown that he is capable of an extremely violent act manifested in the form of a sexual offence, which cannot be said of members of the general public. In my opinion, I do not consider that Mr Batey can be viewed as a lesser risk than members of the general public. This view is reinforced by Mr Lannen's own comments at the AAT hearing. Mr Batey's legal representatives have referred to me those comments (extracted at page 39 of the AAT's decision). Mr Lannen was asked how Mr Batey's remaining in Australia would contribute to his further rehabilitation and his general well being. Mr Lannen's answer, amongst other things, was that he could see the benefit of Mr Batey continuing to live in a supervised environment. It is inconsistent for Mr Lannen to assert, on the one hand, that general members of the public pose a greater risk that Mr Batey and, on the other hand, to state that Mr Batey's rehabilitation would benefit from being in a supervised environment. I assessed that, in a balanced assessment of the risk of recidivism, the following factors should be taken into account :
. rehabilitation - clearly, Mr Batey has shown by his attendance at the SOTP and by his good results at this and other courses that he is willing to deal with his offence and to respond more appropriately in the future. I consider that his progress in this area and the positive contribution he has made to future SOTP courses as favourable; . remorse - Mr Batey appears, on all accounts, to show sincere remorse for his actions. Again, this is an issue favourable to Mr Batey; . prior convictions and behaviour in prison - while Mr Batey's behaviour during the last three years in prison has been good, he has had a number of convictions in his preceding five years in prison as well as convictions between 1978 and 1982. In my view, this indicates that, in an uncontrolled environment or without the appropriate stimulus, Mr Batey may again be exposed to a risk of reoffending; . risk of reversion to alcohol - as Mr Batey as intoxicated at the time of his offence, any future use of alcohol may again be conducive to further offending. Mr Batey continued to use alcohol in the earlier part of his imprisonment, although I accept that Mr Batey has stated that he will abstain from alcohol. One could not state confidently that, in taking his place as a general member of the community in the long term and without supervision, there will be a complete abstention from alcohol; . circumstances of the crime - Mr Batey's crime was characterised by a complete lack of provocation on the part of the victim. This point did not go unnoticed by the trial judge and the judges on the Court of Criminal Appeal. With regard to the risk of recidivism, it clearly indicates that the cause of the offence emanated completely from within Mr Batey. While rehabilitation programs may treat the symptoms of sexual offences and offer appropriate responses and coping mechanisms, the unknown factor still lies within Mr Batey himself. I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP programme. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low.
........ ...
In addition, paragraph 7 of the policy states that : "The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences". In these circumstances, I am asked to exercise my judgment as to whether it is an acceptable risk to allow Mr Batey to remain in Australia. Essentially this involves a judgment as to whether I can accept a small probability of a recurrence of the type of crime Mr Batey committed in 1983. I have stated above my findings on the seriousness of the crime and the risk of recidivism and the respects in which I depart from the AAT. In making these findings I have taken into account the submissions by Mr Batey's legal representatives. I consider that a recurrence of this crime would be devastating for any further victim and their family. In making this judgment on acceptable risk, I have not ignored Mr Batey's personal circumstances. His attendance at rehabilitation programs is complete and I consider that any community obligation to rehabilitate Mr Batey is satisfied. The presence of some members of his immediate family overseas will be important to his reintegration into that community. I accept that Mr Batey's current input to community work and rehabilitation programs are positive contributions to the community and that this factor mitigates against deportation. However, recidivism in the category of crime for which Mr Batey has been convicted will inflict very serious damage to the community. The potential damage caused by recidivism in Mr Batey's case outweighs the actual contribution he is now making. In all the circumstances of this case, having carefully considered all the evidence, the decision of the AAT and the submissions made by Mr Batey's legal representatives, I concluded that, in the best interests of the Australian Community, the deportation order against Mr Batey should be affirmed".
Beaumont J. in his reasons concluded :-
"Risk of recidivism
The Tribunal said, in the course of its reasons: "As to the possibility of recidivism there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed...I believe accordingly that the possibility of recidivism is quite minimal". It will be recalled that the Minister expressed his conclusion on this aspect as follows :- "I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP programme. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low". There is an apparent inconsistency in this reasoning. On the one hand, there is "the reality" of a "real risk, however minimal..." (my emphasis). On the other hand, the Minister's conclusion on the point is said not to "depart greatly" from the Tribunal and the possibility is said to be "low". I have difficulty in following the logic of this approach. If a risk is "real", it is not apparent that it can at the same time be "minimal" or even "low". The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the Tribunal on the point and, at the same time, express the opinion that there was a "real" risk. Such an opinion would be quite contrary to the Tribunal's conclusion on this matter. It must follow, in my view, that, to this extent, the Minister's reasoning was "manifestly unreasonable". This was an important aspect of the Minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the Minister for further consideration in accordance with the law".
The reasoning of the learned trial judge as appears from his obervations is that a "real" risk, as opposed to a minimal risk or a low risk, is one which is substantial. That is, it is a risk assessed in a quantitative sense which has a higher order of probability than one assessed as low or minimal. Accordingly, his Honour held that there was an inconsistency in treating at the same time a risk as both "real" and "low" or "minimal".
In support of the approach taken by his Honour, the respondent contended that the Courts have traditionally treated the word "real" to mean something substantial as opposed to something which was remote. So that, a real risk carries with it a substantial chance that the risk will become a reality, rather than a remote chance it will happen. Thus it was submitted that a real risk is one which is likely, substantial and well-founded. In support of this submission reference was made to Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 and Boughey v. The Queen (1986) 161 CLR 10 at 21. It was further submitted that the decision of the Full Court in Luu v. Renevier (1989) 91 ALR 39 supported the proposition that for a risk to be real it must be likely, substantial and well founded.
In Chan, the Court was concerned with the meaning of a "well founded fear of being persecuted..." in Article 1 of the Convention relating to the Status of Refugees. The Court was not directly concerned with the meaning of "real". Mason C.J. said at 389 :-
"I agree with the conclusion reached by McHugh J. that a fear of persecution is "well founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary: Ex parte Sivakumaran (1988) AC
958. There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" (at p 994) and Lord Goff of Chieveley spoke of "a real and substantial risk of persecution" (at p 1000). Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 480 US 421, where Stevens J., with reference to a statutory provision (which reflected the language of Art. 1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic
(1984) 467 US 407 at p 425, observed that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibility" (at p 440). I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen
(1986) 161 CLR 10, at p 21, per Mason, Wilson and Deane JJ.".
In Boughey, the Court was concerned with the meaning of "likely" in sections 156(2)(a) and 157(1) of the Criminal Code (Tas.). Mason, Wilson and Deane JJ. said at page 21:-
"In our view, the word "likely" is used in both ss. 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a "real and not remote" - chance regardless of whether it is less or more than 50 per cent: cf. Sheen v. Fields Pty. Ltd. (1984) 58 ALJR 93, at p 95; 51 ALR 345 at p 348; and Waugh v. Kippen (1986) 160 CLR 156 at pp 166-167".
The ratio of the decision in Luu is that for a finding that there is a risk of recidivism there must be some evidence to support it. In Luu, the decision-maker in his reasons had stated on the question of recidivism "...this risk has not been completely eliminated and a real risk of recidivism remains". The Full Court, after reviewing the medical evidence, observed at 47 :-
"At the very most those words represent an acknowledgment of the possibility of recidivism; they do not support the view that there was a real risk of it happening".
The Full Court in Luu was not purporting to lay down any requirement that the risk of recidivism must be likely, substantial and well-founded before it can be real. In every case, the meaning of a "real risk" depends upon the meaning attached to the phrase as a matter of common usage and context. That one person uses the phrase in a particular context to mean that there was "a real risk of it happening" in the sense that the risk was likely, substantial and well-founded, and a Court finds that he or she has done so, does not preclude another person when considering the same question using the phrase in a different sense, provided that different sense is as a matter of usage and rational thought, reasonably open.
The decisions in Chan and Boughey demonstrate that as a matter of usage the word "real" when used as an adjective to describe a "chance" or "risk" means that the chance of the event happening or the risk becoming a reality is not remote even though the chance or risk is less than 50 percent. "Remote" in this context means something that is extremely unlikely to occur. This is to use the word "real" in the context of a quantitative assessment of the chance or risk. The decisions in Chan and Boughey mean no more than that in the context of the enactments there being considered, the chance of the event occurring assessed in a quantitative sense had to be substantial and not remote even though the chance may be less than 50 percent. However, neither the meaning of the word "real" when used to describe a chance or risk nor any requirement of the law, requires that a "real risk" or a "real chance" be assessed solely on a quantitative basis.
The word "real" may be used to describe the qualitative nature of a risk or chance. In this sense it is used to describe something which is not far-fetched or fanciful. Use of the word in its qualitative sense is most clearly seen in the treatment of risk of injury in the law of negligence. Reference to one case will suffice to illustrate the use of the word in a qualitative sense.
In Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40, Mason J. with whom Stephen and Aickin JJ. agreed, said at 47 - 48 :-
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors".
(Emphasis added)
As appears from the observations of Mason J. in Wyong Shire Council v. Shirt, there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low. Such a course is rationally open provided that the word "real" is used in a qualitative and not a quantitative sense to describe the risk.
The question in this case is what meaning did the Minister ascribe to the phrase "real risk of recidivism" in his reasons for refusing to revoke the deportation order against the respondent. That question is to be determined by a consideration of the language used by the Minister in his reasons and the process of reasoning discernible from those reasons. It is not determined by the use of the same or similar words in statutes or in other contexts.
As appears from his reasons, the Minister uses the fact of the commission of the offence to support a view that in certain circumstances the respondent by his conduct has shown that he is capable of committing a sexually and physically violent act. The Minister considers the part alcohol played in the offence, the acknowledged problem the respondent had with alcohol, and, the possible influence future use of alcohol will have on the respondent's behaviour and the risk of re-offending. The Minister then considered the fact that the respondent had completed the Sex Offenders Programme at the Moreton Correctional Centre and the impact that the programme had, or may be likely to have, on modifying the respondent's future conduct. The Minister treated as relevant to his assessment of the risk of recidivism the existence of, and part played by, supervision of the respondent and his need to abstain from alcohol consumption. Both matters were relevant to any proper assessment.
The evidence of Mr Lannen was that constant supervision was a factor in achieving low recidivism rates for sexual offenders who had completed the course. He said :-
"Well; now, how has he been perceived so far as his changes - or as far as his rehabilitation is concerned and his chance of re-offending, does he - in the event that he comes out of prison either in Australia or in England, what's the risk of recidivism?---The - well, let me think. Having completed the program, the risk of recidivism is reduced from 85 per cent, according to Freeman-Longo's figures and those of French in Fremantle, to around 12.5 per cent, and that also takes into consideration that the person is paroled and he is then under the constant supervision, as all parolees are, of the Community Corrections' Board with weekly supervision sessions by a parole officer. And, in addition to that, Community Corrections have now developed a follow-up treatment to - a sort of maintenance program so the people who have come out successfully and are on parole for sex offences will have regular maintenance input with appropriately trained psychologists".
The extent to which the respondent would be subject to supervision was set out in the reasons of the Tribunal :-
"Mr Batey's due date of discharge from his sentence is 24 February 1995. He is currently eligible to apply for parole. If he applies and parole is granted his parole will take place along the lines as set out in the oral evidence of one Ms. Hill. Initially he would be in a release-to-work hostel, i.e., under supervision 24 hours a day. This lasts 3 to 6 months. He then goes on home detention under 24 hour a day supervision for 4 months save if at work or on a sporting or social or other pass. He then goes on to parole which is subject to conditions along the lines of Exhibit 14 including regular reporting. The period of parole is for the balance of the term of imprisonment, i.e., in the applicant's case, to the 24 February 1995".
There was ample evidence that alcohol consumption by the respondent was a factor in his previous criminal conduct including his involvement in a prison escape attempt in November, 1988. The importance of the respondent's abstention from alcohol use was recognised by Mr Lannen. He stated in evidence that by consuming alcohol the respondent would be "entering into his criminal cycle".
The effect of Mr Lannen's evidence was that satisfactory completion of the Sex Offenders Programme dramatically reduced the risk of recidivism when compared with sex offenders who had not undergone similar treatment. His evidence was that follow-up on rapists who have completed the course has shown that statistically in the order of 2.8% - 5.1% re-offend. He expressed the opinion that the respondent, given the treatment he received and with insight into his prior conduct, his childhood and alcohol problems, fell within the category of offenders who constituted a minimal risk of committing similar crimes in the future. However, it is clear that his judgment is predicated on a belief that the respondent is capable of not reverting to an unhealthy consumption of alcohol. If that judgment is wrong, then alcohol could again lead the respondent "into his criminal cycle". Mr Lannen did not suggest that there was no risk of recidivism or that such risk as existed was far-fetched or fanciful. Rather, Mr Lannen gave evidence of matters which, in his opinion, minimised such risk as existed of the respondent re-offending.
Unlike the Tribunal, the Minister did not uncritically accept the evidence of Mr Lannen, and it was the areas where the Minister did not accept the evidence of Mr Lannen, or the assumptions which underlay it, which led the Minister to assess quantitatively such risk as existed as "low" as opposed to "minimal".
Principally, it was the unknown factors which persuaded the Minister that the risk was higher than minimal. Those factors were :-
(a) What caused the respondent to commit a violent rape;
(b) Whether the treatment had remedied the cause or would the cause recur;
(b) Was it the control by supervision, and the appropriate stimulus from those supervising the respondent, which was presently operating to modify the respondent's behaviour and to cause his abstention from alcohol and if so, what would happen when the control was removed in the light of his past behaviour when he was uncontrolled;
(c) Whether there will be complete abstention from alcohol when the respondent was an uncontrolled member of the general community.
In his overall assessment the Minister gave more weight to the facts as they concerned the respondent personally than to statistical possibilities of recidivism.
It was this process of reasoning which led the Minister to two conclusions: firstly, that "the reality is that there is a real risk, however minimal, of recidivism"; secondly, that the risk of recidivism was "low".
The only direct comparison the Minister makes with the finding of the Tribunal is in relation to the second conclusion. Both are a quantitative assessment of the risk of recidivism. The Minister expresses the conclusion that in the result he "does not depart greatly from the AAT". In our view there is not a sufficient disparity in degree between "minimal" and "low" to hold, on this basis alone, that the Minister's conclusion was unreasonable or not logically open. Nor does it show that the Minister did not understand or misunderstood the conclusion reached by the Tribunal. The Minister in his reasons acknowledged that in concluding the risk of recidivism was "quite minimal" the Tribunal placed "substantial weight" on the evidence of Mr Lannen. He recorded that the respondent's solicitors had asked the Minister to adopt the same approach. When the Minister compares "minimal" with "low" and concludes that there is no great disparity between him and the Tribunal, he is clearly of the view that both are assessing the risk at the bottom end of the range of possibilities.
The Minister made no direct comparison with the Tribunal as to the first conclusion he reached. However, it is important to recognise that both the Tribunal and the Minister came to the conclusion on the evidence that some risk of recidivism existed and it was that risk that they both assessed in a quantitative way as "minimal" or "low" respectively. The finding by both the Tribunal and the Minister that there was some risk was supported by the evidence of Mr Lannen. If the Minister had not used the word "real" to describe the risk there would be no arguable inconsistency in the Minister's statement as to the conclusions which he and the Tribunal had reached.
The phrase "the reality is" is used merely to emphasise that irrespective of how the risk is assessed, the risk has an actual existence and its existence cannot be denied on the basis that the possibility of risk is unreal, hypothetical, or specious. The phrase, in context, is used by the Minister in contradistinction to the use by Mr Lannen of statistics and statistical possibilities, viz, hypothetical possibilities. The word "real" which is then used to describe the risk extends the notion of existence as an actuality in contrast to something that is unrealistic, far-fetched or fanciful. In this respect the Minister is dealing with the risk in a qualitative sense. In our view the Minister is undertaking a course of reasoning and using the word "real" in a context similar to that undertaken and demonstrable in the extract from Wyong Shire Council v. Shirt cited above. The Minister is saying no more than there is a risk of recidivism which is not far-fetched or fanciful, notwithstanding that the possibility of recidivism may be minimal or, in the Minister's judgment low. There is no inconsistency between the Minister and the Tribunal on this issue because the Tribunal, to come to the view which it did, must have found that there was a risk which was not far-fetched or fanciful before it assessed that risk as minimal.
It was submitted that later in his reasons where the Minister weighs the risk of recidivism against the damage to the community should the respondent commit a like offence, the Minister indicates that he has assessed the risk of re-offending as a probability although of a small order. The Minister said :-
"...I am asked to exercise my judgment as to whether it is an acceptable risk to allow Mr Batey to remain in Australia. Essentially this involves a judgment as to whether I can accept a small probability of a recurrence of the type of crime Mr Batey committed in 1983. I have stated above my findings on the seriousness of the crime, and the risk of recidivism and the respects in which I depart from the AAT". (Emphasis added).
Because of the use of the word "probability", it was submitted that the Minister had intended "real" to be understood as likely, substantial, and well-founded and thus inconsistent with the conclusion reached by the Tribunal.
In the reasons just cited, the Minister is not purporting to make any comment upon whether the risk is real or not. Rather, he is making a statement as to the risk in quantitative terms. He is recording that he has a different view to the Tribunal and that the areas of and reasons for the differences are dealt with earlier when he considered the risk of recidivism. He is not indicating any intention on his part to depart from that earlier position. That earlier assessment was concerned with the evidence of Mr Lannen and how it was used by the Tribunal and the Minister. The Tribunal accepted the evidence of Mr Lannen and concluded: "The possibility of recidivism is quite minimal". The Minister concluded that the level was "low" as opposed to "minimal". However, the assessment dealt with, and was ordered as, possibilities; not probabilities. The Minister's conclusion was that he and the Tribunal both came to an assessment of the same general order of the risk of recidivism. The choice of the phrase "small probability" may have been an infelicitous one, however, in the context it means nothing more than a small order of probability which the Minister had previously assessed as a low possibility. There is nothing in the use of the phrase which would persuade us that the Minister held or had earlier intended to convey the view that he regarded the risk of recidivism as more probable than not or likely, substantial, and well-founded.
In our respectful opinion the learned trial judge was in error in holding that the Minister's reasoning was "manifestly unreasonable" because, in his Honour's judgment, the view taken by the Minister as to the nature of the risk of recidivism was not rationally open with an acceptance, or substantial acceptance, by the Minister of the opinion of the Tribunal that the risk of recidivism was quite minimal. For the reasons set out above, when the sense in which the Minister used the word "real" is understood, there is no inconsistency or logical bar to the Minister coming to the conclusion which he did.
It was argued by the respondent that there was no evidence to support the Minister's conclusion that there was a real risk of recidivism (Luu v. Renevier). However, that argument was premised on the assumption that the Minister found that there was a likely, substantial, and well-founded risk of recidivism. For the reasons previously given the assumption is not factually correct. Therefore, it is not necessary to deal with the submission. It was not argued, and could not reasonably have been argued, that there was no evidence to sustain a finding that there was a risk which was not far-fetched or fanciful.
The appeal should be allowed and the orders below set aside.
The respondent should also be ordered to pay the costs of the appeal and the costs of the proceedings appealed from.
7
0