Baston v Minister for Immigration and Border Protection

Ground one - denial of procedural fairness 28 Mr Baston's second nominated ground of review is that the Minister denied Mr Baston procedural fairness and did not give Mr Baston a fair hearing. 29 Under this rubric, Mr Baston contended that the Minister did not give consideration to the deleterious effect that his deportation would have on his mother's health and well-being. 30 Mr Baston said that he had stated in the two separate submission documents addressed to the Minister that the impact of his deportation on his mother's health and well-being was an important consideration when making his decision whether to revoke Mr Baston's visa cancellation. 31 In his first submission dated 30 June 2016, Mr Baston referred to the fact that his mother had already lost one son in tragic circumstances. As mentioned, Mr Baston stated that his late brother had been held in a geriatric mental ward in an institution in Queensland when he was in his 20s for approximately five years and that he had died approximately eight weeks after his release from that institution. Mr Baston stated that his mother had been medicated for depression since then. 32 Mr Baston said that the impact of his deportation on his mother's health and well-being was "of major importance and must be the main consideration when making any decision." Mr Baston went onto to say that, having already outlived one of her sons, the removal of Mr Baston from his mother's life would be a "cruel punishment on someone who does not need additional stress in the later years of life". 33 In a second submission dated 13 April 2017, Mr Baston reiterated that his mother had severe depression and health problems related to her age, and that his detention caused "further issues" as he could not assist with his parents' care. 34 In his written submissions to this Court, Mr Baston said that the Minister showed little serious concern for his family situation over and above the general distress caused by his separation from his family. Mr Baston said that he had called on the Minister to show compassion in the review of his case and that the Minister had not done so. 35 In my view, contrary to Mr Baston's submissions, the Minister did have regard to the contentions made by Mr Baston regarding his mother's ill health and the tragic circumstances which had caused her depression. 36 At [17] and [18] of his reasons for decision, the Minister had regard to the matters affecting Mr Baston's mother's mental ill health referred to by Mr Baston in the two submission documents. This included the fact that his mother had already lost one son after he had been admitted into the mental health unit at the Wacol mental hospital for five years and died approximately eight weeks after his release and that his mother had, as a consequence, been medicated for depression and has suffered from depression ever since. The Minister also recorded the submission that Mr Baston's removal would be a cruel punishment for a woman who did not need additional stress in her life. 37 The Minister at [20] of his reasons for decision went on to accept that the non-revocation of the visa cancellation would mean that Mr Baston's mother would "experience emotional hardship." However, the Minister did not find that this circumstance was sufficient when weighed against the other circumstances to result in him deciding to revoke the cancellation of Mr Baston's visa. 38 The substance of Mr Baston's complaint really is that the Minister did not deal with Mr Baston's submission with the "compassion" which Mr Baston says that the Minister should have exhibited; and that he disagrees with the merits of the Minister's decision. 39 In my view, the weight which the Minister gave to the consideration of the impact of his deportation on Mr Baston's mother's health, was a matter for the Minister and the fact that the Minister did not give that consideration the decisive weight for which Mr Baston contended, does not reveal jurisdictional error. Nor does the fact that the Minister failed to exhibit the compassion which Mr Baston hoped he would, demonstrate jurisdictional error. 40 This ground of review is dismissed.

Ground two - The Minister misapplied or misinterpreted the law 41 The next ground of review complains that the Minister made a jurisdictional error in failing to take into account Mr Baston's obligations to his family members left in Australia. 42 Mr Baston said that the Minister was required under Direction No 65 "Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" to take into account the strength, duration and nature of any family or social links with Australian citizens or permanent residents "including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)". 43 Mr Baston went on to contend that the Minister had failed to act in accordance with Direction No 65 because he had failed to have regard to the following circumstances: (a) the effect his decision would have on Mr Baston's three brothers - Mr Simon Baston, Mr Jason Baston and Mr Andrew Baston; (b) the fact that his three surviving brothers have Australian born children and that one brother was an Australian citizen and the other two brothers were in the process of becoming Australian citizens; and further, that Mr Baston's sister has Australian born children; (c) the fact that his deceased brother, Tony, had been buried in Australia in a "very tranquil rural setting" and that Mr Baston's visits to the place of his deceased brother's grave were very special for Mr Baston. Mr Baston said that he did not know how he would cope if he could not visit the burial place. 44 Unlike a delegate of the Minister exercising delegated powers, the Minister was not obliged to have regard to the ministerial direction (Bochenski v Minister for Immigration and Border Protection (2017) 347 ALR 45 at [75]). 45 Further, in my view, the Minister did have regard to the extent of Mr Baston's family ties in Australia insofar as they were raised by Mr Baston in his submissions and the effect of his decision on Mr Baston's wider family. 46 At [16] of his reasons, the Minister referred specifically to the fact that Mr Baston had three brothers and a sister, as well as an uncle and aunt and cousins, who were all resident in Australia. Further, at [20], the Minister recognised that the effect of the non-revocation of the cancellation of Mr Baston's visa would cause his immediate family in Australia emotional hardship. 47 The fact that the Minister did not specifically name Mr Baston's brothers and sister does not amount to a jurisdictional error. 48 Nor did the failure by the Minister to mention the other matters set out at [43] above, amount to jurisdictional error. The submissions which were made by Mr Baston to the Minister did not refer to the fact that his siblings had children resident in Australia. Nor did they refer to the burial place of Mr Baston's late brother. It was not a jurisdictional error for the Minister not to have referred to the matters which were not raised before him by Mr Baston. 49 It is apparent that the Minister was aware that Mr Baston's family were all resident in Australia and had been so for many years. Considering this strong and lengthy connection of his family to Australia, it was incidental that one of his brothers had become an Australian citizen and the other two were in the process of applying for Australian citizenship. It was not a jurisdictional error for the Minister to fail to advert to this circumstance. 50 This ground of review is dismissed.

Ground three - The Minister failed to properly consider all of Mr Baston's claims 51 The next ground of review is that the Minister failed to properly consider all of Mr Baston's claims. 52 In support of this claim, Mr Baston contended that the Minister did not give any weight to the report of Mr Ryan, the clinical psychologist. Mr Baston referred particularly to that part of Mr Ryan's report which stated that Mr Baston had "participated well in treatment, demonstrating a strong commitment to achieving his treatment goals" and to the statement that: Mr Baston has responded well to psychological treatment and noted that he has benefitted from talking about his difficulties and learning better coping skills. 53 Mr Baston also said that the Minister had failed to take into account Mr Baston's statement in his submissions to the Minister that there was no chance of him re-offending as he had participated in many clinical sessions with Mr Ryan and it was his intention to keep an ongoing relationship with Dr de Villiers and any person to whom Dr de Villiers may refer him. 54 It is incorrect to say that the Minister gave no weight to those considerations. 55 It is apparent from the Minister's reasons, that the Minister did have regard to Mr Ryan's report dated 13 March 2017. The report is referred to and considered at [47]-[50] and [56] of the Minister's reasons, as well as the sentencing judge's remarks regarding a report by Dr Donna Eshuys, a clinical psychologist, and an earlier report by Mr Ryan. 56 The Minister's reasons record that Mr Ryan was of the view that Mr Baston had participated well in the clinical sessions and demonstrated a strong commitment to achieving his treatment goals. The reasons also record that the Minister had specific regard to Mr Ryan's opinion that Mr Baston's criminal conduct did not reflect "predatory grooming, but rather poor decision-making around boundaries when he was exposed to play behaviour by a minor, who regularly initiated physical contact in her play". 57 Further, in addition to taking into account the content of Mr Ryan's report of 13 March 2017, the Minister's reasons at [47] also record that the Minister had regard to the fact that Mr Baston had himself said in his submissions that there would be no chance of him re-offending, and that he intended to maintain an ongoing relationship with Dr de Villiers. 58 It is apparent, therefore, that the Minister did have regard to Mr Ryan's report as well as Mr Baston's expression of commitment not to re-offend and that Mr Baston was of the view that there was no such chance of him re-offending; and that the Minister gave those considerations weight. 59 However, it is also apparent that the Minister weighed those considerations against other considerations. The Minister observed that there remained a likelihood that Mr Baston may re-offend and that Mr Baston's expressions of intention to be a law-abiding citizen and any rehabilitative efforts had not been tested in the community. The Minister also took into account Mr Baston's diagnosis of depression and schizoid personality disorder by Dr Eshuys and that that condition left him "liable to maintain little insight into his offending". 60 Further, the Minister noted that if Mr Baston was to re-offend in a similar way to his past sexual crimes, this may cause significant psychological or physical harm to members of the Australian community. 61 It is apparent, therefore, that the Minister did give weight and consideration to the matters referred to by Mr Baston, but concluded that there were other factors which outweighed those factors. There was no jurisdictional error in the approach adopted by the Minister. Matters of weight are for the decision-maker. 62 This ground of review is dismissed.

Ground four - The Minister failed to consider a relevant consideration 63 In support of this ground of review, Mr Baston claimed that the Minister gave no weight to the submissions he addressed to the Minister that his father had early stages of dementia and other health problems. 64 In his outline of submissions before this Court, Mr Baston stated that this father had now been diagnosed with Alzheimer's disease which was "a much more serious condition" and that his mother and father were fearful as to how this would progress; and as to the attendant impact on their lives and how they would cope. This information was not before the Minister. Therefore, the Minister could not be criticised for not having taken it into account. 65 However, there was before the Minister the information in Mr Baston's letter of 13 April 2017 in which he advised that his father had been diagnosed with the early stages of dementia and that his aged parents had health issues and mental health issues which put them in a "bad position". Mr Baston had gone on to say that because he was in detention, he was not able to look after them and his inability to care for them had created further issues for his parents. 66 The Minister's reasons show that the Minister did take into account the information that was placed before him by Mr Baston about his father's dementia and other health issues. At [19], the Minister referred specifically to Mr Baston's submissions that his father had early stages of dementia and that Mr Baston being in detention had caused his parents further issues. 67 Mr Baston also alleged that the Minister had failed to refer to, or follow, two paragraphs of the department's Procedures and Advice Manual (PAM) which appear to refer to the relevance of compassionate circumstances affecting the age and health of a person in instances where hardship would be caused to that person. 68 However, the Minister is not obliged to follow the PAM and his failure to do so, even if established, would not amount to jurisdictional error (El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45]). 69 This ground of review is dismissed.

Ground five - The Minister considered an irrelevant consideration 70 Under this heading, Mr Baston made three separate complaints. 71 First, Mr Baston said that the Minister had referred in his reasons to a previous conviction for drug related offences which had occurred in 1989. Mr Baston went on to observe that the judge who sentenced him in respect of the criminal sexual offences had said that the 1989 drug conviction was irrelevant in assessing the appropriate sentence for the indecent treatment and making and possessing child exploitation material charges in respect of which Mr Baston had been convicted. Mr Baston contended that the Minister's reference to his 1989 drug conviction showed that the Minister had considered an irrelevant consideration. 72 Secondly, said Mr Baston, the Minister had not given him the opportunity to comment on the 1989 conviction for drug related offences. 73 It is the case that the Minister referred in his reasons to Mr Baston's conviction in 1989 for drug related offences. However, the Minister made this observation in the context of considering Mr Baston's likelihood of re-offending in relation to the child sex offences for which Mr Baston had been convicted and sentenced in November 2015. 74 On the proper construction of his reasons, the Minister did not take the 1989 drug conviction into account in an adverse manner to Mr Baston. Rather, the Minister referred to the 1989 drug conviction in the course of responding to Mr Baston's submission that he would be a law-abiding citizen if permitted to remain in Australia. The Minister referred to the 1989 conviction in the course of acknowledging that for a considerable time since his 1989 conviction, until his child sex offences in the period 2011 to 2014, Mr Baston had lived a law-abiding life. However, the Minister went on to find at [57] that, notwithstanding the length of the period during which Mr Baston led a law-abiding life and the other factors in Mr Baston's favour, there remained a likelihood that Mr Baston may re-offend by committing crimes similar to his past sexual offences. 75 In my view, therefore, the reference by the Minister to Mr Baston's previous 1989 drug conviction was not a reference to a circumstance adverse to Mr Baston in the Minister's decision-making process. Accordingly, procedural fairness did not require Mr Baston to be given an opportunity to comment on the 1989 drug conviction. The Minister did not fall into jurisdictional error either by referring to the 1989 drug conviction or by failing to give Mr Baston an opportunity to comment thereon. 76 Mr Baston's third complaint under this heading was that the Minister had fallen into jurisdictional error in the course of finding that there remained a likelihood that Mr Baston may re-offend, by observing that Mr Baston's "expressions of intention to be a law-abiding citizen and any rehabilitative efforts have not been tested in the community". 77 In his contentions of fact and law, Mr Baston contended that the Minister had fallen into jurisdictional error because the Minister's reasoning was irrational. This was because, said Mr Baston, he has been in detention for the whole period since his conviction and, therefore, had not had the opportunity to prove that he was rehabilitated in the community. 78 In my view, the Minister did not fall into jurisdictional error. 79 The Minister was simply recording the fact that Mr Baston's child sex offences comprised a particularly damaging form of conduct to the community, that Mr Baston had not demonstrated a capacity to live in the community without re-offending and the weight to be given to Mr Baston's expressed intention not to re-offend and Mr Ryan's report had to be assessed in that light. 80 In my view, this process of reasoning was open to the Minister and did not constitute irrationality such as to give rise to jurisdictional error. 81 This ground of review is dismissed.

Ground six - the Minister did not give Mr Baston an opportunity to comment on an issue in dispute 82 The next ground of review was that the Minister did not give the applicant an opportunity to comment on an issue in dispute. 83 Under this rubric, Mr Baston said in his written submissions to this Court that his son had gone through a horrifying experience. This was that his son's maternal grandmother had been murdered by her husband, his grandfather, and after his grandfather had murdered his grandmother, his grandfather spent a day with his children and grandchildren, before committing suicide. 84 Mr Baston said the fact that there was suicide in the family meant that there was a greater prospect of other family members following the same behaviour. Mr Baston went on to submit that even though his son was now a grown man, his son would suffer trauma from being separated from his father. Thus, the non-revocation of the cancellation of his visa would have an adverse effect upon his son. 85 Mr Baston did have an opportunity to make submissions to the Minister and, as mentioned, submitted submissions to the Minister dated 30 June 2016 and 13 April 2017 respectively. Mr Baston did not refer in those submissions to the murder and suicide mentioned above. Mr Baston did, however, refer to the fact that he had a son and his son's date of birth. 86 In my view, there is no merit in this contention. 87 The Minister at [16] and [20] of his reasons, did have regard to, and accepted, that the applicant had a son who would be affected by the non-revocation of the cancellation of his visa, and that his son and other members of his immediate family would experience "emotional hardship". 88 The Minister did not fall into jurisdictional error. 89 This ground of review is dismissed. 90 Mr Baston also claimed that there was a factual error in the Minister's reasons for decision. 91 Mr Baston said that in his reasons for decision, the Minister stated that when Mr Baston came to Australia with his parents in 1976 he was 11 years old. In fact, said Mr Baston, he was 15 years old. Mr Baston said that the factual error represented the superficial approach which the Minister had taken to his case and was a jurisdictional error. 92 Counsel for the Minister accepted that the recording of Mr Baston's age as 11 years old in 1976 was an error. 93 An error of fact does not in itself amount to jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). 94 Accordingly, this ground of review is dismissed.

Failure to take into account Mr Baston's attendance at a course and his remorse 95 In his written submissions to this Court, Mr Baston said that the Minister had failed to take into account his attendance at a course called "Combat Life Traps". This course was, said Mr Baston, a voluntary course available to detainees on Christmas Island. Mr Baston said that his attendance at this course and many of the other courses offered to detainees on Christmas Island had demonstrated his commitment to improvement and his intention not to re-offend. 96 Mr Baston referred to his attendance at this course and attached a certificate of attendance to his letter of submissions to the Minister of 13 April 2017. 97 At [45] of the Minister's reasons, the Minister stated that he had given consideration to the steps Mr Baston had undertaken to reform and address his behaviour and referred specifically to Mr Baston's conduct in the "custodial" environment. 98 Although the Minister does not refer specifically to the Combat Life Traps course by name, it is apparent from his reasons that the Minister had taken Mr Baston's conduct in custody into account. 99 Accordingly, insofar as this constitutes a ground of review, the ground of review is dismissed. 100 I also observe that in his written submissions to this Court, Mr Baston also contended that the Minister had failed to mention a paragraph in his letter of 13 April 2017 in which he had expressed remorse and that he was committed to not re-offending. 101 In my view, the failure to specifically mention that paragraph from the 13 April 2017 letter does not amount to jurisdictional error by the Minister. 102 In the Minister's reasons, the Minister referred on a number of occasions to Mr Baston's expressed intention to live a law-abiding life. It is implicit in those paragraphs that the Minister has taken into account the sentiments expressed by Mr Baston in the paragraph he identified from his letter of 13 April 2017. 103 Accordingly, insofar as this constitutes a ground of review, the ground of review is dismissed.

ADDITIONAL COMPLAINT MADE IN THE CONTENTIONs OF FACT AND LAW 104 I now deal with the additional complaint made in Mr Baston's contentions of fact and law. Other complaints were made in Mr Baston's contentions of fact and law, but they have already been dealt with.

Characterisation of Mr Baston's criminal conduct as "very serious" 105 Mr Baston also contended that the Minister had fallen into jurisdictional error by mischaracterising the sentencing judge's assessment of Mr Baston's criminal conduct. 106 In support of this claim, Mr Baston referred specifically to the following paragraph of the Minister's reasons: I find that the sentences Mr BASTON received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. 107 Mr Baston said that the sentencing judge had never referred to Mr Baston's criminal conduct as "very serious" and, accordingly, the choice of those words by the Minister, said Mr Baston, meant that the Minister approached his task with a "preformed opinion". 108 The crimes for which Mr Baston was convicted are, by reason of their nature, very serious and whether or not the sentencing judge used those words, it was implicit from both the nature of the crimes and the fact that Mr Baston was sentenced to a term of two years' imprisonment, that the crimes were open to be characterised by the Minister as very serious. 109 This ground of review, insofar as it comprises a ground of review, is dismissed. 110 Mr Baston's application for judicial review is dismissed. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.