Baulch v Minister for Immigration & Multicultural Affairs

4 Paragraphs (b) and (c) of this par [54] of the memorandum contain other decisional options put up by Ms Garner for the Minister's consideration which he rejected. 5 As already appears, in preparing the memorandum, Ms Garner did not strike out from par [1] the word "her" in the phrase "whether his/her visa" and neither she nor the Minister struck out the words "(if any)" in par [54], although it is manifest that her memorandum relates to the applicant, who is male, and although it is noted in the document that he made detailed submissions by letter and by completing an interview questionnaire in response to be served with a notice of 8 May 2000 given him by the Minister's delegate. This notice informed him that consideration was being given to cancelling his migrant visa and invited him to provide any comment he wished to be considered by the decision-maker. 6 Ms Garner says:

"In order to prepare the Memorandum I used a precedent document that contains extracts from the Respondent's Direction No 17 and a number of standard sentences, that is used by case officers across Australia to prepare memoranda to the Respondent. The use of the expressions 'his/her' on page 1 of the Memorandum in paragraph [1] and 'if any' on page 14 in paragraph [54], is because the Memorandum was prepared using the precedent document."

7 The provision under which the cancellation decision was made, s 501(2) the Migration Act, gives the Minister a discretion to cancel a person's visa if, firstly, the Minister reasonably suspects that the person does not pass the character test and, secondly, the person does not satisfy the Minister that the person passes the character test. It was not disputed that, in the circumstances of this case, the cancellation discretion conferred by s 501(2) was enlivened. 8 The applicant was born in the United Kingdom in 1957 and arrived in Australia as a migrant with his parents shortly before his third birthday. He has continuously lived here since. He was first convicted in 1976 of an offence of selling Indian hemp and received a sentence of three months hard labour. He was convicted in 1979 on two charges of "peep and pry"; in 1986, of possession of a prohibited plant and related offences and in 1996 of similar drug offences and, in 1992, of receiving, for all of which offences he received non-custodial sentences. The applicant was then convicted in October 1998 on his plea of guilty to a large number of offences arising out of the sexual relationship he initiated with his step-daughter when she was seven years of age and which he continued beyond her sixteenth birthday. The offences included numerous sexual offences as well as offences involving the supply of cannabis to the child. The sentence imposed by the trial judge, effectively of twelve years imprisonment with no recommendation for early parole, was varied on appeal by the applicant to an effective term of nine years with a recommendation for consideration of parole after serving four years. 9 It is not disputed that the Minister's decision is only reviewable by this Court under Div 2 of Pt 8 the Migration Act, ie, on the limited grounds provided for by s 476(1). 10 The applicant contends, firstly, that the decision is flawed with reviewable error of law. Reference was made to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, particularly at 595, where it was said:

"… the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief."

11 It was said that the Minister's cancellation decision involved only a purported, as distinct from a real, exercise of power under s 501(2). Evidence supporting this submission was said to be found, firstly, in the fact that par [54] of the Minister's decision includes, without amendment, the words "(if any)" in the passage reciting the Minister having considered, among other things, "the non-citizen's comments (if any)", when the applicant had in fact provided detailed comment to the Minister. Secondly, in what was said to be the "failure by the Minister, to make any proper assessment of the 'risk to the community'" of allowing the applicant to remain in Australia. 12 The evidence suggests, so it was said, that the Minister agreed with Ms Garner's observation in par [15] of her memorandum to him that it was open to him to find that the applicant "is at a high risk of recidivism". It was said that such a conclusion could not have been arrived at through any proper assessment of that risk but rather through uneducated guesses and arbitrary assessment. The applicant's argument, in so far as it relies on the Minister having considered the material relevant to the risk of recidivism but having arrived at a wrong conclusion on that issue, is at odds with the reliance placed on the Minister's failure to strike out the words "(if any)" in par [54] as evidencing a failure by the Minister to give any serious consideration at all to Ms Garner's memorandum. But I do not think that this oversight by a Minister dealing with what must be one of many documents, pro forma in structure though not in content, provides any evidence that he failed to turn his mind to the issues for his determination. 13 If the applicant's argument that the Minister acted on the view of the facts secondly referred to is accepted, it is difficult to accept that the Minister's ultimate decision to cancel the visa involved an error of law within s 476(1)(e). What has to be established to make out this ground of review, so far as it is here relevant, is an incorrect application of the law by the Minister to the facts as found by the Minister. His findings of fact must be accepted and the Court is confined to determining whether the Minister incorrectly applied the law, relevantly, s 501(2) the Migration Act, to those particular facts. There is no room for this Court to review the facts found by the Minister. Once it is accepted that the Minister must be taken to have found that there was a high risk of re-offending, it cannot be said that, in arriving at his decision to cancel the visa, he incorrectly applied s 501(2) to the facts which included that particular fact. Even if the Minister were open to legitimate criticism in making that particular finding of fact on the material before him, having found it, he made no "error of law" within s 476(1)(e) in arriving at his conclusion based on it and the other facts found by him in accordance with the view it can be inferred he took of Ms Garner's memorandum. 14 The applicant's reliance here on Guo is misplaced. Though a migration decision, it is a decision given prior to the restriction by Parliament of this Court's jurisdiction to review such decisions, now contained in s 476 the Migration Act. Guo is a decision on error of law within the meaning of the relevantly unqualified expression "error of law" in s 5(1)(f) the Administrative Decisions (Judicial Review) Act 1977 (Cth). That provision provides for significantly wider review than does s 476(1)(e) the Migration Act. 15 The applicant's challenge to the decision here really comes down to a complaint that the Minister did not properly exercise a discretion under s 501(2) because of the lack of cogency of the material before him relevant to the assessment of the applicant's risk of re-offending. 16 The applicant, however, disclaimed any challenge to the decision on the "no evidence" ground contained in s 476(1)(g) and (4). Any such challenge would, in my opinion, have been doomed to fail. I do not consider that the evidence concerning the applicant's long term drug use, his use of drugs in connection with the sexual offences he committed on his step-daughter, the nature and the very long duration of his criminal sexual relationship with the girl and the report, including the opinions expressed by the Acting Senior Community Correctional Officer, Ms Hier, accurately summarised in Ms Garner's memorandum to the Minister, are such as to leave the decision opened to challenge on the "no evidence" ground. 17 In my opinion, the evidence before the Minister relating to the applicant's personal circumstances on the issue of the risk of his re-offending was sufficient to enable a rational judgment to be made on that question. In submissions, counsel referred to the desirability of a risk assessment by someone such as a psychologist or psychiatrist being available in relation to this issue of re-offending, particularly given the consequences for this long term resident of Australia. But there is no requirement as a matter of law, either by reason of anything in the Minister's Direction No 17, to which Ms Garner had regard in preparing her memorandum, or anywhere else for such expert opinion to be available to the Minister on this issue. 18 Cases such as Yeo v Queensland Corrective Services Commission (Supreme Court of Queensland, Dowsett J, unreported, 13 February 1998) and Wiskar v Queensland Corrective Services Commission (Supreme Court of Queensland, Williams J, unreported, 22 December 1998) are decisions under a significantly different statutory regime from Div 2 of Pt 8 the Migration Act. Both were concerned with review of decisions refusing prisoners remissions of sentence under a statutory scheme that gave a prisoner a qualified right to remission. See Wiskar, where it was said, at [3], of this scheme:

"… once the respondent has determined that in accordance with regulations 21 and 27 the prisoner has been 'of good conduct and industry' he is entitled to a grant of remission unless the Commission is positively satisfied after affording the prisoner 'procedural fairness' that there are overriding considerations which compel in the exercise of discretion a contrary decision."

19 They provide no ground for finding reviewable "error of law" in s 476(1)(e) in the Minister's decision here in question. 20 The applicant also submitted that the Minister's decision was reviewable pursuant to s 476(1)(d) as an improper exercise of the power conferred by s 501(2). The scope of this ground of review is narrowed by s 476(3). The applicant submitted that nevertheless there was reviewable error in the decision within s 476(1)(d) because, in terms of s 476(3)(c), it involved the exercise of a discretionary power in accordance with a policy without regard to the merits of the particular case. It is plain that Ms Garner structured her memorandum to the Minister around the Minister's Direction No 17 made under s 499 the Migration Act. It can be inferred that it was by reference to the various considerations referred to in this Direction and dealt with in Ms Garner's memorandum that the Minister arrived at his decision to cancel the visa. 21 While this Direction does not impose on the Minister, as distinct from his delegated decision-makers, a statutory duty to have regard to it, he is entitled to take into account the various considerations set out in the Policy in making decisions for himself under s 501(2). See Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10] per French J. 22 The Direction identifies relevant considerations and how they are to be weighed in exercising this discretionary power. It is not a Policy purporting to dictate a particular outcome in any particular case or class of case. It was not suggested (and does not appear) that any of the considerations set out in the Direction are foreign or irrelevant to a proper exercise of the power conferred by s 501(2). 23 Apart from the suggestion that the Minister did not have adequate expert material available to him to enable him to make a proper assessment of the applicant's risk of re-offending and, by implication, the suggestion that the substantial body of material going to that issue that was before him was insufficient to enable him to arrive at a proper conclusion on that issue, there was no suggestion that he failed to direct his mind to considerations truly relevant to the exercise of the discretion, even though he arrived at his conclusion on the basis of Ms Garner's memorandum, which was in turn framed by reference to Direction No 17. Ms Garner's memorandum contains what appears to be a full identification of all the considerations telling for and against a decision to cancel this applicant's visa. The applicant did not make a suggestion to the contrary. I do not accept this ground of review as made out. 24 The amended application for review raises a number of other challenges to the decision, but they were abandoned at the hearing. 25 The application must be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate: Dated: 27 February 2001 Counsel for the Applicant: J Davidson

Solicitor for the Respondent: Blake Dawson Waldron