Thomson v Minister for Home Affairs
[2018] FCA 1615
•24 October 2018
FEDERAL COURT OF AUSTRALIA
Thomson v Minister for Home Affairs [2018] FCA 1615
File number(s): VID 444 of 2018 Judge(s): O'CALLAGHAN J Date of judgment: 24 October 2018 Catchwords: MIGRATION – application for review of decision by Minister for Home Affairs not to revoke the mandatory cancellation of the applicant’s Absorbed Person visa – whether Minister’s decision affected by jurisdictional error Legislation: Migration Act 1958 (Cth), ss 197AB, 476A, 501(3A) Cases cited: Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29
Elias v Commissioner of Taxation (2002) 123 FCR 499
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Date of hearing: 24 October 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: Ms S Kelly Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr D Brown Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 444 of 2018 BETWEEN: GRAHAM THOMSON
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
24 OCTOBER 2018
THE COURT ORDERS THAT:
1.The applicant have leave to rely on the amended originating application for review filed on 8 October 2018.
2.The decision of the respondent dated 6 February 2018 be quashed.
3.A writ of mandamus be issued directed to the respondent requiring him to determine the applicant’s application according to law.
4.The respondent pay the applicant’s costs in the amount of $7,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons for judgment were made ex tempore in the hearing on 24 October 2018 and accompany the orders above.
This is an application made under section 476A of the Migration Act 1958 (Cth) (the Migration Act) by which the applicant seeks an order that the decision of the respondent, the Minister for Home Affairs, (the Minister) dated 6 February 2018, be quashed, that a writ of mandamus be directed to the Minister requiring him to determine the applicant’s application according to law, and his costs.
The applicant was represented at the hearing by Ms S Kelly of counsel, who sought leave to rely upon an amended originating application. The Minister, who was represented by Mr D Brown, consented to such leave being granted.
This application is required to be determined immediately because the applicant has three months to live, something which Mr Brown properly accepted in light of the medical evidence adduced, in particular in a recent letter from the applicant’s consultant respiratory physician (Exhibit A1).
The applicant is now 76 years old, he suffers from advanced mesothelioma (among many other disabling conditions).
The applicant arrived in Australia in 1949, when he was seven years old. He has lived here continuously since that time. Indeed, he has never left Australia. The applicant never acquired Australian citizenship, and on 1 September 1994 was taken to have been granted an Absorbed Person visa by operation of law.
Between 1987 and 1989 the applicant engaged in sexual offending against his stepdaughter when she was aged between 10 and 12. The offending ceased in 1989. In 2012, the applicant’s stepdaughter made a statement to police with respect to the offending. The applicant was interviewed by the police and made full admissions. Eleven charges were laid, being five charges of indecent assault, four charges of gross indecency, and two charges of incest. The applicant pleaded guilty before any committal hearing, and was given a total effective sentence of four years and six months imprisonment. He was declared to be eligible for parole after two years and six months imprisonment, and was released from prison about three weeks ago, whereupon he was placed in immigration detention in Melbourne, where he remains. He was placed in immigration detention because on 27 September 2016 his Absorbed Person visa was cancelled pursuant to s 501(3A) of the Migration Act (the cancellation decision). In October 2016, the applicant made an application for revocation of that cancellation decision and, in February 2018, the Minister refused to revoke the cancellation decision.
The amended originating application contains five grounds. Ms Kelly did not press ground 3, for reasons that are immaterial. In my view, for the reasons that follow, the application should be allowed and the orders sought by the applicant made because grounds 1 and 5 are made out. It is therefore unnecessary to consider the remaining grounds.
First, I turn to ground 5. That ground is that:
The Minister failed to give proper or genuine consideration to the possible consequence of the decision [not to revoke the cancellation decision], being that the applicant might face prolonged and possibly indefinite detention.
The applicant does not contend that the Minister did not refer to the question of indefinite detention. He clearly did so, at paragraph [54] of his reasons, as follows:
I note that prior to removal from Australia Mr Thomson would be the subject of a fitness for travel assessment undertaken by the health professionals in the immigration detention network. I am aware that if Mr Thomson were found unfit to travel then it would not be reasonably practicable to remove him while that finding of unfitness to travel remained current, with the result that he may face the possibility of prolonged or indefinite immigration detention because of the operation of section 189, section 196, and section 198 of the Migration Act. I have given serious consideration to the prospect of indefinite detention as a legal consequence of a decision to cancel Mr Thomson’s visa arising from the operation of section 189, section 196, and section 198 of the Act.
The applicant’s contention is that the Minister failed to give proper or genuine consideration to the possible consequence of his decision not to revoke the cancellation decision because the Minister said nothing about the particular consequences about the prospects of indefinite detention for the applicant in the unusual and particular circumstances of this case. In particular, the Minister gave no consideration to the obvious enough consequence of indefinite detention in the applicant’s case in circumstances where, at the time the decision was made, the evidence before the Minister was that the applicant had 12 to 18 months to live (such that he would, in all probability, die in immigration detention in the near future).
In my view, the Minister was obliged to take into account such a probability. It is hard to imagine that the matter was not noticed, and in my view it was erroneous to discard the possibility as an irrelevant consideration: cf Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] per Hely J.
Turning next to ground 1. By that ground the applicant alleges that the Minister’s decision was unreasonable, illogical, or irrational, and thereby affected by jurisdictional error in that none of the matters on which the Minister relied in order to reach the conclusion that the applicant posed a risk of reoffending, in fact, supported or was capable of supporting such a conclusion. The gist of this ground is that each of the matters to which the Minister referred in his reasons for concluding that “[i]n light of the above, there is a risk that Mr Thomson will reoffend” and that he “…represents an unacceptable risk of harm to the Australian community” do not in truth, or on their proper construction, support, justify, or evidence such conclusions.
The following matters were expressly taken into account by the Minister and would have supported the conclusion that Mr Thomson was not at risk of reoffending. Those matters are set out in Ms Kelly’s written submissions as follows (paragraph references are to the Minister’s decision):
(1)The applicant’s statement that there were some factors that might help explain his offending behaviour ([66] to [68]);
(2)The contents of a letter of support from the applicant’s wife, which referred to additional matters that may have contributed to the applicant’s offending ([69]);
(3)The applicant’s statement that he was very remorseful and that he made every effort to regain his stepdaughter’s trust ([70]);
(4)That the applicant had the support of his wife and daughter ([70]);
(5)That the applicant ceased his offending when confronted by his stepdaughter and did not resume his offending ([71]);.
(6)That the applicant made full admissions when first confronted about the offending ([72]);
(7)That in 1992 the offending was reported to the Department of Community Services, after which his stepdaughter was removed from the family home for six months ([72]);
(8)That the applicant, his wife, and his stepdaughter underwent counselling together, following which the daughter returned to the family home ([72]);
(9)That in 1992 the offending was reported to the Department of Community Services, after which his stepdaughter was removed from the family home for six months ([72]);
(10)The applicant’s statement that when the stepdaughter returned home, the applicant and his wife supported her through secondary schooling, where she performed highly ([73]);
(11)That the principal of the stepdaughter’s school wrote to the applicant and his wife complimenting them on the encouragement they provided her ([73]);
(12)That the applicant supported the stepdaughter through Girl Guides and in finding employment at a zoo ([73]);
(13)The applicant’s statement that when the stepdaughter was home sick she would call him and ask him to visit her, and that the applicant secured her employment at the zoo so that he could regularly visit her, which he did ([74]);
(14)That on the applicant’s visits the stepdaughter would hug him, say that she loved him and missed him, and that they would shop together ([74]);
(15)That the applicant’s offending ceased in 1989 and that he has not reoffended since ([75]);
(16)The applicant’s statement that the stepdaughter has suffered because of his offending and that he believes it is totally his fault ([76]);
(17)The applicant’s assertion that he “will never forgive himself” and that is “truly remorseful” ([76]);
(18)That the applicant has never been imprisoned before and that he “fully understands how the victim and families feel about him” ([77]);
(19)The applicant’s statement that he wrote a letter of apology to the victim and understands that he is a “serious sexual offender” and feels “disgusted and ashamed of his actions” and “will continue to feel that way until the day he dies” ([77]);
(20)The opinion of a registered psychologist that, at the time of his offending, the applicant had a specific sexual problem ([78]);
(21)That the applicant has now developed a reactive adjustment disorder with mixed anxiety and depressed mood ([80]);
(22)That the registered psychologist concluded that the applicant’s risk of reoffending was low ([80]);
(23)That the representations indicate that the applicant is remorseful, and rehabilitated, and does not pose any risk to the community ([80]);
(24)The sentencing judge’s opinion that the delay in prosecuting the applicant had enabled him to “demonstrate his complete rehabilitation, his remorse, and his shame” ([80]);
(25)The sentencing judge’s statements that (1) the applicant was “not simply remorseful but truly repentant” and that entering a guilty plea at the “earliest possible opportunity further evidences his remorse”; (2) he was satisfied that the applicant was not a person who would reoffend; and (3) during his record of interview the applicant accepted responsibility for his actions and accepted his – accepted the victim as a truthful person ([80]);
(26)The informant’s statement that the applicant “could not have been more frank and cooperative” ([81]);
(27)That during his term of imprisonment the applicant completed the drug and alcohol release related harm reduction program and various other courses ([82]);
(28)The applicant’s statement that due to his good behaviour in prison he was transferred to an open prison farm ([83]);
(29)That the applicant produced negative urine samples for numerous substances through his term of imprisonment ([83]);
(30)While incarcerated the applicant voluntarily worked in the garden area, hothouse, and canteen ([84]);
(31)That prison records indicate that the applicant’s behaviour is of an “excellent standard” and that he is “polite and respectful to staff at all times” ([84]);
(32)The applicant’s historic offending and subsequent period of lawfulness in the community ([85]);
(33)The applicant’s remorse for his offending, see the Minister’s decision at paragraph 85.
(34)The applicant’s continued efforts at self-improvement and rehabilitation through courses and ongoing counselling ([85]); and
(35)The applicant’s family support network in Australia ([85]).
Counsel for the applicant also identified factors taken into account by the Minister which she described as “neutral considerations” on the question of whether the applicant was at risk of reoffending. In her oral submissions, counsel explained that by the expression “neutral” she meant that the factors do not of themselves speak to or support a finding that the applicant was at risk of reoffending. The neutral considerations were as follows:
(1)That it took the victim, who was a minor who considered the applicant to be her father, to tell him, an adult man, that what he was doing was wrong (71);
(2)That the report of the registered psychologist, Mr Cummins, that at the time of the applicant’s offending the applicant knew “what he was doing was wrong, but it sort of became a bit of an addiction, and at the time he felt he had to do it”, and that the applicant continued his offending despite recognising that his conduct was wrong (79);
(3)That the applicant had not participated in any specific sexual offending program to assist further with his rehabilitation (82);
(4)The very serious nature of the applicant’s offending (85); and
(5)The fact that the applicant’s employment and family support network did not serve as protective factors against his offending (85).
As Ms Kelly submitted, the Minister’s conclusion that “in light of the above” at paragraph [86] of his reasons that there was a risk that the applicant would reoffend lacks an evident and intelligible justification, and is therefore, relevantly, unreasonable. That is because there was no fact or evidence before the Minister which he identified that supported the conclusion that the applicant was at risk of reoffending. As the Full Court said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 446 at [47]:
…where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, where a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court…
(See also Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29, 42-43 at [67]-[70].)
In my view, for the reasons advanced by counsel for the applicant, there is no intelligible justification for the conclusion reached (which was critical to the decision not to revoke the cancellation decision) that the applicant was at risk of reoffending.
For those reasons, in my view, ground 1 is made out. It follows that the application is to be allowed and the relief sought by the applicant granted.
I mention one other matter in conclusion. A submission is currently before the Minister inviting him to determine that the applicant is to reside at a specific place rather than being held at the detention centre in which he is currently detained. I assume that that place is his family home. That power, which is a non-compellable personal power, is granted to the Minister under section 197AB of the Migration Act. Because it is a non-compellable personal power, it is not for this court to do more than note that the Minister’s written submission refers to that application having been made. Mr Brown also told the court this morning that the application is with the Minister at the moment. Given that it is not disputed that the applicant has something in the vicinity of three months to live, one could be forgiven for urging that the application promptly be dealt with in circumstances where the applicant’s success on the application will not, without more, result in him being released from immigration detention.
Accordingly, I will order as follows:
(1)The applicant have leave to rely on the amended originating application for review filed on 8 October 2018.
(2)The decision of the respondent dated 6 February 2018 be quashed.
(3)A writ of mandamus be issued directed to the respondent requiring him to determine the applicant’s application according to law.
(4)The respondent pay the applicant’s costs in the amount of $7,000.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 25 October 2018
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