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[2021] FCAFC 196
Federal Court of Australia (Full Court)
2021-11-10
O'Callaghan JJ
Original judgment source is linked above.
THE COURT: 1 This is an appeal from orders made by a judge of this Court, dismissing an application for judicial review of a decision of the Minister: Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 428. The primary judge summarised the circumstances leading to the Minister's decision as follows: [1] The applicant was the holder of a Class BF transitional (permanent) visa (the transitional (permanent) visa). It was cancelled mandatorily on 27 March 2018 (the cancellation decision) under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act (substantial criminal record) based on s 501(7)(c) and because, at that time, the applicant was serving a sentence of imprisonment, on a full-time basis, in Mount Gambier Prison, South Australia. On 1 December 2017, the applicant had been convicted in the District Court of South Australia on four counts of possessing child pornography for which he was sentenced, on all charges, to three years and two months imprisonment, with a non-parole period of 18 months. … [4] Section 501CA(4) of the Act provides that the Minister may revoke a cancellation decision under s 501(3A) if representations are made in accordance with an invitation given under s 501CA(3)(b) of the Act and the Minister is satisfied that the person passes the character test or, if that test is not passed, there is another reason why the cancellation decision should be revoked: s 501CA(4). [5] The applicant made representations to the Minister pursuant to an invitation given on 12 February 2019. On the basis of the representations then made, the Minister was not satisfied that the applicant passed the character test; nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. In these circumstances, the cancellation decision remains. … [7] The Minister's reasons show that he considered a number of matters concerning the applicant when enquiring whether, absent the applicant satisfying the character test (which he did not satisfy), there was another reason why the cancellation decision should be revoked. It is only necessary to refer to two of those matters - in broad terms, the nature of the applicant's criminal offending and the risk that this posed to the Australian community, on the Minister's assessment. I have referred to the applicant's convictions for possessing child pornography. His criminal offending is more extensive. 2 The Minister accepted that there were compelling circumstances favouring revocation of the visa cancellation decision, but found that they were outweighed by a low risk of the appellant reoffending, in turn creating a risk of significant harm to the Australian community. 3 The judicial review proceeding before the primary judge challenged the Minister's risk assessment reasoning and conclusion. By an amended notice of appeal filed by leave granted at the appeal hearing, the appellant maintains, and to an extent expands upon, that challenge. It is therefore necessary to set out the Minister's reasons in some detail as follows, in order to understand and address the competing arguments (minor typographical errors corrected): Protection of the Australian Community [43] In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular Mr CRAIG's claim he does not pose an unacceptable risk of reoffending. I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. Criminal conduct [44] In considering the nature and seriousness of Mr CRAIG's criminal offending, I find that sexual offences involving minor children are very serious. [45] On 1 December 2017, Mr CRAIG was convicted at the District Court of South Australia of two counts of Possess child pornography (basic offence) and two counts of Possess child pornography (aggravated offence), for which he was sentenced to three years and two months imprisonment on all charges, with a non-parole period of 18 months. I note these are his most serious offences, leading to his incarceration and visa cancellation. [46] The circumstances of his offending are described in the Sentencing Remarks as follows. On 15 April 2014, Mr CRAIG's car was stopped by the police when a Samsung mobile and an iPhone were found in his car, which contained child exploitation material. The police subsequently searched Mr CRAIG's home and located a digital camera, a laptop, USB drives and a computer, two SD cards, two iPhones and a recordable hard drive. A total of more than 900 images of child exploitation material of various categories were found as detailed below, albeit some of them were duplicated across these devices. • On the camera - a total of 11 images, all in the aggravated category 1, being sexually suggestive poses; • On the iPhone found in the car - a total of 505 images, with 26 in the basic category (most at levels 1 and 2, three at level 5) and 479 in the aggravated category (456 of those were level 1, 13 at level 2 and 10 at level 3); • On the Samsung mobile phone - a total of 167 images most of these fell into level 1, although there were 14 images at level 3 and two at level 4 in the aggravated category; • On the laptop - a total of 178 images, 19 in the basic category and 159 in the aggravated category (most are in category 1 but there are some at levels 2, 3 and 4); • On the USBs - most of the images were in the aggravated category; • In the EM machine and hard drive - a total of 40 images, 35 in the aggravated category; • On a black iPhone - a total of 58 images, 54 were in the aggravated category. [47] In terms of seriousness of the offending, I concur with the Judge that the offences of possessing child exploitation material are 'very serious' in nature. I am cognisant that the offence involves vulnerable victims because real children are abused in the taking of those images, to cater for a market created by viewers. I am mindful that Mr CRAIG's child pornography offences are sexual offences against vulnerable members of the community. I hold the view that such offending is very serious in nature and is repugnant to the Australian community. … [50] I am conscious that the creation date for the child pornography images on Mr CRAIG's devices were within the 12-month period while he was on a good behaviour bond imposed in 2012. Although he was not charged for breaching that bond, I find that Mr CRAIG offended while he was on conditional liberty, which adds to the seriousness of his offending. … [58] I have also considered the cumulative effect of Mr CRAIG's offending, which includes the physical and psychological impact on the Australian community as well as the cost to community resources such as the courts, the police and the corrective services system. I find that when viewed in totality Mr CRAIG's other offences also amount to serious offending. [59] In light of the above information, I find that Mr CRAIG's child pornography offences are very serious and his other offending in Australia is serious. Risk to the Australian community [60] I have considered whether Mr CRAIG poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr CRAIG has undertaken to reform and address his behaviour. I have also taken into account Mr CRAIG's overall conduct in the custodial and non-custodial environment, and his insight into the offending. … [67] I note that when the police searched his house, Mr CRAIG volunteered the information that he had a sex doll in a wardrobe, next to a bag of children's clothing. It appeared that the sex doll was homemade and dressed in a child's T-shirt. Mr CRAIG told the police that he had not touched the doll for a long time and had left it in the wardrobe. While Her Honour opined that the sex doll was 'particularly concerning' given the nature of Mr CRAIG's offences, I adopt Mr Balfour's assessment that Mr CRAIG had 'not progressed' in his offending behaviour. … Remorse [69] According to the Sentencing Remarks, while Mr CRAIG pleaded guilty to his child pornography offences, they were not made 'until late' until the time of trial. [70] I note with concern that the court observed Mr CRAIG was in denial of his offences. In relation to the iPhone found in his car, Mr CRAIG advised the police that the phone was not his but was found in his car after giving some friends a lift. He decided to keep it and put a SIM card into the phone, added some contacts and put a cover on the phone. He admitted to the police taking pornographic images of himself with the phone but stated that a person named Steve had been hacking his phones for years. [71] I note that Mr CRAIG stated to the police that while he was confronted by the image of a young child wearing a pink top and blue shorts on the iPhone, he decided to keep the picture so that he could advise the girl or her mother. [72] Mr CRAIG told the police that he acquired the camera a few years ago but had used it a few times and did not know what was on the camera. He also told the police that his ex-girlfriend and her new partner had been trying to have him arrested and gaoled. [73] The Judge did not accept Mr CRAIG's claim that his phone had been hacked and the material [was] put on it that way, stating such explanation was 'implausible and convenient', which was a view shared by Mr Balfour. I note Mr Balfour's opinion that Mr CRAIG's denial was 'his psychological coping mechanism against feelings of remorse, shame and a fear of being ostracised', which was a cause of concern, although denial amongst sex offenders was 'commonplace'. [74] I note that, in sentencing, the Judge found it 'very concerning' that Mr CRAIG lacked genuine insight into his offending behaviour. Her Honour stated that 'You do not express any real insight in relation to your offending, nor any real insight into the harm that is caused to children when they are forced to engage in conduct such as this … nor do they give me any confidence in relation to your rehabilitation'. [75] I note that when asked about the lessons learned from his offending behaviour, Mr [CRAIG's] responses to Mr Balfour were 'Don't be so trustworthy. Don't hang around people who are associated with drugs and that sort of behaviour. Abide by the law. I don't use the internet, it has ruined my life'. I share the court's concerns that Mr CRAIG did not admit his offending 'in a meaningful way' and his response to Mr Balfour did not show 'any real insight' into his offending behaviour. I find that his initial denial, his late guilty plea, as well as his responses all indicate a lack of remorse and insight. I have considered Mr Balfour's view that Mr CRAIG may require therapy to acquire insight into his offending. [76] In his revocation submission, Mr CRAIG apologises for his actions, recognising the 'irreparable damage' to his victims and to himself. He submits that the risk of his future offending is 'non-existent' as his potential removal from Australia has had a clear salutary effect on him. Mr CRAIG submits that he is not a threat to the community but someone who has 'only stumbled', as compared to those 'serious offenders and recidivists who cannot otherwise be controlled'. He states that 'I do not, however, feel that the nature of the offending is so bad as to necessitate my being removed from Australia', and that the period of incarceration he received is 'on the low end of the scale', indicating a 'hope for rehabilitation'. [77] I acknowledge Mr CRAIG's submissions that his imprisonment is a wake-up call and an opportunity to reset himself for the next [phase] of life. While I accept that Mr CRAIG is now somewhat remorseful for his actions and has expressed an intention to refrain from offending, I find that his statements continue to demonstrate an attempt to minimise the seriousness of his offending, which throws doubt on his claims to be remorseful and has negative implications for his rehabilitation prospects and future risk of reoffending. … [82] I note that Mr CRAIG's family and friends remain very supportive of him, as demonstrated by their letters of support and their regular visits to him in prison. They attest to his otherwise good character, remorse and rehabilitation and strongly advocate for his continuous presence in Australia. [83] I note in his favour that Mr CRAIG has not involved in any major adverse incidents while in detention. [84] While these are positive signs that Mr CRAIG has taken steps and made rehabilitation progress, I note with concerns that there is no evidence of him undertaking any therapeutic programs or courses to address his sexual offending behaviour and causal factors such as his drug habit and underlying mental health issues. [85] I remain cautious as Mr CRAIG has been in a supervisory environment and free from the temptations of illicit drugs while he has been detained and this will not be the case if he is released into the community. The risk of Mr CRAIG relapsing into drug abuse is a factor which I consider to be important and his ability to refrain from illicit drug use remains untested in the community. … [87] In summary, I have taken into account the mitigating circumstances in relation to Mr CRAIG's offending, including his relationship difficulties, mental health issues and long-term drug use. I have considered his guilty plea and expressed remorse, his rehabilitation efforts and progress, including remaining drug free, undertaking medication for his mental health issues, undertaking vocational courses and maintaining employment in prison. I have considered the positive behaviour he displayed while in custody and in detention. I find that the incarceration and visa cancellation have had a salutary effect on Mr CRAIG, in addition to his strong desire to remain in Australia with his family. I also consider that he had until 2012 lengthy periods of not offending while in the community and that he has good employment prospects, given his skills and work experience. I find these factors indicative of a lower risk of him committing further offences. [88] I have considered Mr CRAIG's submissions that he has strong support from his family and friends. While I take into account that such support will act as a protective factor, I am cognisant that it existed before but it failed to deter him from offending. [89] Notwithstanding, I find it particularly concerning that Mr CRAIG fails to demonstrate sufficient level of remorse and insight as discussed above. Given his history of offending while on conditional liberty, I am mindful that his ability to remain abstinent and crime free has not been tested in the community. I find these factors indicative of a risk of reoffending. [90] Overall, I find that there is a risk, albeit a low risk, that Mr CRAIG will reoffend. Taking into account the nature of his conviction being sexual offences against children, I find that further offending by Mr CRAIG in a similar manner could result in psychological and/or physical harm to vulnerable member or members of the Australian community. … [99] In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr CRAIG represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his grandson and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and his familial, community, education and employment ties to Australia, and the hardship Mr CRAIG, his family and his social network will suffer in the event the original decision is not revoked. 4 The grounds of appeal are as follows (minor typographical errors corrected): [1] The primary judge erred by failing to find that the decision of the Respondent was affected by jurisdictional error, in that the Respondent engaged in irrational or illogical reasoning. Particulars a. The Respondent's reasons reflect that the relevance of the Respondent's assessment of risk to the Australian community was the protection of the Australian community. The reasons also reflect that it was the Respondent's intention that the protection of the Australian community would be furthered by the removal of the Appellant (who the Respondent said posed a risk, albeit low, of reoffending) as a consequence of a decision not to revoke the Respondent's cancellation decision. b. However, given the nature of the offences there was no basis upon which the Respondent could infer that (if the risk that the Respondent was guarding against occurred, being reoffending by the Appellant in a "similar manner") the identified potential harm would be reduced by reason of the Appellant's removal from Australia. c. Therefore, to reason that the "unacceptable risk of harm to the Australian community" meant that the protection of the Australian community outweighed the considerations that favoured the revocation of the cancellation of the appellant's visa, was to reason in an illogical and irrational manner. d. The protection of the Australian community was a critical consideration in the respondent's decision-making, and the error was material to the decision of the Respondent. [2] The primary judge erred by failing to find that the decision of the Respondent was affected by jurisdictional error, because the Respondent had made findings of fact for which there was no evidence. Particulars a. The Respondent found that "further offending by [the Appellant] in a similar manner could result in psychological and/or physical harm to vulnerable member or members of the Australian community". And also found that "the Australian community could be exposed to significant harm should [the Appellant] reoffend in a similar fashion". b. However, there was no probative basis for the finding of potential harm to members of the Australian community. It was a finding that relied on assumption and not interference. And so there was no proper link between the offences committed by the Appellant and the asserted risk of harm to members of the Australian community. c. Accordingly there was an absence of evidence to support a finding which was material to the Minister's decision. The decision thereby constituted jurisdictional error. [3] The primary judge erred by failing to find that the decision of the Respondent was affected by jurisdictional error, because the erroneous findings of fact referred to in Ground 2 were legally unreasonable, in the sense that they revealed illogicality and irrationality amounting to jurisdictional error.
Ground 1 5 The Minister contends that Ground 1 was not advanced before the primary judge and the appellant therefore requires leave to rely upon it. That is correct insofar as the first ground of review before the primary judge is cast in somewhat different terms from the first appeal ground. However closer examination reveals a sufficient overlap. Particular (a) of the first judicial review ground was that there was "no evidence for the finding that if the applicant reoffended in a similar manner, it could result in harm to vulnerable members of the Australian community". While recast to give a different emphasis, particular (b) to appeal ground 1 maintains the allegation of there being no evidence to support the finding of a risk of harm to the Australian community. It follows that this issue was sufficiently raised before his Honour to obviate the need for leave. That is so even though the argument now advanced is in terms of an asserted absence of evidence or other material available to the Minister to establish any difference in the risk between the appellant remaining in Australia and re-offending, and being returned to the United Kingdom and reoffending in a like manner there. 6 The substance of this ground is that the object of the protection of the Australian community reflected in the statutory scheme of the Migration Act 1958 (Cth), for which s 501CA(4) is the presently operative provision, requires a connection between the removal of the appellant from Australia and in some way advancing that protection objective. The appellant asserts that there is no basis upon which the Minister could conclude that the potential for any such harm would be reduced by his removal from Australia. 7 That is said to be because there was no basis for the Minister to conclude that child exploitation material forming part of any future offences of possessing such material would be more or less likely to contain images of child members of the Australian community if the appellant accessed those images overseas rather than in Australia. For that reason, he asserts that the conclusion in the Minister's reasons at [99] that the protection of the Australian community outweighed the consideration favouring revocation of the visa cancellation decision involved a faulty step in reasoning sufficient to constitute illogicality or irrationality rising to the level of jurisdictional error. 8 The appellant relies upon MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] per Besanko, Farrell and Thawley JJ and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] per Crennan and Bell JJ. Those authorities require the characterisation of the Minister's reasons relied upon to be established by the appellant. 9 The real substance of this ground of appeal was addressed by the primary judge, albeit in partial response to the first aspect of the first judicial review ground, when his Honour said the following: [22] The applicant submits that there is no evidence that the child pornography he possessed, for which he had been convicted, involved any vulnerable members of the Australian community, by which I take the applicant to mean there is no evidence that the child pornography he possessed involved children who were then part of the Australian community. The applicant submits that it follows that there is no evidence that, if he reoffended in a similar manner, his conduct could result in harm to vulnerable members of the Australian community. [23] This aspect of the first ground of review appears to be based on a misunderstanding of what the Minister was conveying. At [47] of his reasons, the Minister did not make a finding that was specific as to the identity (in terms of locality) of the children who were the subject of the pornographic images the applicant possessed. It was not necessary for the Minister to do so. [24] At [46] of his reasons, the Minister summarised the material which the applicant possessed. At [47], he referred to the applicant's offences in this regard as "sexual offences against vulnerable members of the community". It is tolerably clear that, in referring to "sexual offences against vulnerable members of the community", the Minister was not confining his observation to vulnerable members of the Australian community. Of course, the images, or some of them, might have been of such members. But here the Minister was using the word "community" in a broad sense to mean a societal grouping, wherever located. [25] The Minister referred to such offences as "repugnant to the Australian community". In making this finding, the Minister was not saying that such offences were repugnant to the Australian community because (and only because) the pornographic images were of children in the Australian community. The Minister's point was that the applicant's offences involved children, and thus a sub-group who were vulnerable. The Minister was saying that such offences - sexual offences involving children - were repugnant to the Australian community. [26] When, at [90] of his reasons, the Minister referred to the risk of the applicant further offending in a similar manner, it is clear that his focus was on psychological and/or physical harm to vulnerable members of the Australian community. Further, the Minister's focus was on the possibility of such harm - hence the Minister's use of the modal verb "could", not "would". The use of "could" is apposite to describe risk based on the possibility of harm. Here, the Minister's finding addressed the risk that any future offending by the applicant could involve, although not necessarily involve, images of children who were members of the Australian community. … [34] I do not see the present case as one involving an absence of evidence. Rather, this case raises, more appropriately, the question of whether the Minister's finding was legally unreasonable in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. In other words, bearing in mind that the Minister was making an evaluative judgment on a necessarily hypothetical question, was it rational for the Minister to conclude that the applicant's possible reoffending could involve harm to vulnerable members of the Australian community? [35] I am not persuaded that, in order to reach the conclusion, rationally, that the applicant's possible reoffending could involve harm to vulnerable members of the Australian community, the Minister needed to have before him evidence that the images possessed by the applicant, for which he was convicted, were of children in the Australian community or that, if he were to reoffend in a similar fashion, the images necessarily would be of children in the Australian community. The future risk, which the Minister addressed, concerned a class of possible victims of child pornography, namely children in the Australian community. In addressing that risk, there was no reason to think that children in the Australian community are not vulnerable, or are less vulnerable than other children, to sexual exploitation of the kind involved in that activity. Indeed, in the absence of evidence that children in the Australian community are in a different position to other children as possible victims of child pornography, why would it be rational to think otherwise? [36] In looking at the matter through that lens, I am satisfied that it was rational for the Minister to reach the finding he did. His finding was not legally unreasonable. I am not persuaded, therefore, that the applicant has established jurisdictional error in respect of this aspect of the first ground of review. 10 We consider that his Honour's reasoning is correct. It is no answer to that reasoning to say that the appellant re-offending in a like manner overseas might theoretically involve the same degree of risk to Australian children, and therefore there is no reduction of risk of such harm by him being returned to the United Kingdom, making the conclusion as to reduction of risk unsupported by evidence and thereby illogical or irrational to the degree necessary to constitute jurisdictional error. 11 The Minister's reasoning involves no more than common sense extrapolation from the known facts, rather than being unsupported and thereby illogical or irrational. In particular it is obvious and logical that those who in some way use child exploitation material contribute to market demand for the creation of more such material. The creation of such material necessarily involves the actual abuse of children in order to photograph or film them. That could involve Australian children as a result of any such activity taking place in Australia. It was therefore open to the Minister to find that there was a risk (albeit low) to the Australian community in the appellant remaining in Australia and committing further child exploitation material offences here. That the appellant might find a way to pose a similar risk to children in Australia from committing such offending overseas does not render that conclusion without rational support. Precise equivalence of risk in such a predictive exercise is impossible in any event. 12 A further and even more fundamental problem with this ground of appeal is that it assumes that the source of all the child exploitation material that was the subject of the offences for which the appellant was convicted and sentenced was the internet, such that the children depicted in them could not be shown to be Australian. That assumption is not just tenuous, but in key respects incorrect on the facts in this case. The first dot point to [46] of the Minister's reasons reproduced above refers to 11 child exploitation material images on a camera. The Minister also had before him, and referred to, the sentencing remarks in the District Court of South Australia: see [69]-[72] of the Minister's reasons, reproduced above. Those sentencing remarks included the appellant describing receiving that camera a few years earlier, and using it during the past year without knowing what else was on it. The sentencing remarks also included a reference to the appellant being shown an image of a young child on a mobile telephone found in his possession, which he admitted seeing and said he had kept in the event that he ran into the girl or her mother so that he could tell them that he had found the image: referred to in the Minister's reasons at [71]. The inescapable inference is that the image was of a child in Australia. 13 It follows that there was evidence before the Minister of domestically sourced child exploitation material being among what the appellant was convicted of possessing, with the irresistible inference that at least some of the images were taken of children in Australia. The asserted absence of evidence which is the foundation for this ground of appeal cannot be accepted. The Minister was entitled to conclude that there was a risk to Australian children, and thus to the Australian community, if similar offending was to recur, and therefore to conclude that this risk would be reduced by deciding not to revoke the visa cancellation decision. 14 This ground of appeal must fail.
Grounds 2 and 3 15 Grounds 2 and 3 are based upon substantially the same factual substratum and were therefore addressed at the same time. They also entail looking at aspects of the reasoning sought to be impugned by ground 1, but from a slightly different perspective. The appellant asserts that the findings by the Minister: (a) at [90] that further offending in a similar manner could result in psychological and/or physical harm to vulnerable members of the community; and (b) at [97] that the Australian community could be exposed to significant harm should the appellant reoffend in a similar fashion, both required a probative basis that is said to be absent. 16 The substance of the appellant's argument is that unlike offences of violence for which recurrence can readily be seen to result in harm to the Australian community, the same cannot be said for internet access to child exploitation material offences, for which specific evidence of harm or a risk of harm to the Australian community is asserted to be required. For the reasons given above in relation to ground 1, that argument cannot be accepted. Akin to what has already been observed, there is an obvious and logical connection between any dealing with child exploitation material, and such dealing contributing to the demand market for the creation of more such material and thereby the exploitation of children to produce that material. That may include children in Australia. Specific evidence to support such an obvious and logical conclusion from the nature of such offending is not required, including identifying, as a matter of ordinary logic, the contribution of such dealing towards market motivations to create such material. This is not mere guess work or speculation. 17 The appellant also places reliance on the reasoning in Dunn v Minister for Immigration and Border Protection [2016] FCA 489, in which it was concluded, contrary to the above, that specific evidence was required to prove a connection between internet access to child exploitation material offending, and the risk of harm to the Australian community, should such offending recur especially in relation to children in Australia. The primary judge distinguished Dunn. We see no error in his Honour's reasoning in doing so. However, for the reasons given, the reasoning in Dunn requiring specific evidence in aid of a conclusion predicting a risk of future harm to the Australian community flowing from any recurrence of child exploitation material offending is wrong and should not be followed. 18 These two grounds of appeal must also fail.
Conclusion 19 As all three grounds of appeal have failed, the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Jagot, Bromwich and O'Callaghan.
Craig
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs