Dunn v Minister for Immigration and Border Protection

1. The decision of the respondent to refuse to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa made on 2 September 2015 is quashed.
2. The respondent is to pay the applicant's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH ACJ: 1 The applicant, Clive Ronald Dunn, seeks an order quashing a decision made by the respondent, Minister for Immigration and Border Protection, on 2 September 2015. By that decision the Minister refused to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. 2 The applicant was born on 3 February 1948 in New Zealand. He came to Australia about 35 years ago as an adult aged 32. 3 On 17 December 2014, the applicant was convicted in the County Court of Victoria of three child pornography offences. The first offence was accessing child pornography using a carriage service. He was sentenced to 12 months imprisonment to be released after serving three months on entering a recognisance in the sum of $5000 and including a condition that he be of good behaviour for 24 months. The second offence was making available child pornography using a carriage service. On this conviction he was sentenced to six months imprisonment, four months of which were to be served concurrently and suspended after serving three months. The third offence was knowingly possessing child pornography. For this offence he was sentenced to four months imprisonment to be served concurrently. 4 In these circumstances, the Minister was bound to cancel the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act), and by a delegate did so, on 17 March 2015. 5 The Minister has the power to revoke the cancellation under s 501CA(4) of the Act which provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 6 On 22 April 2015, lawyers acting on behalf of the applicant made representations under s 501CA(4)(a) of the Act to the Minister to revoke the cancellation decision. 7 The Department of Immigration and Border Protection provided the Minister with an Issues Paper which addressed the circumstances relevant to the consideration of the revocation of the cancellation decision. The Issues Paper included a draft statement of reasons for refusing the revocation application in the event that the Minister decided on that course. On 2 September 2015, the Minister did so decide, and signed the statement of reasons provided to him by the Department. 8 The Minister's reasons addressed the best interests of certain of the applicant's grandchildren, the strength, nature and duration of the applicant's ties to Australia and the extent of the impediment which would face the applicant if he were removed to New Zealand. There was no contention in the present application about the substance of the way in which these issues were addressed by the Minister. Indeed, most of those matters militated in favour of revocation of the cancellation decision. 9 The area of contention concerns the next matter addressed in the reasons, namely, "the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens" [31]. 10 In addressing the protection of the Australian community, the Minister first considered and evaluated the seriousness of the offending. His reasons stated: 35. In addressing the seriousness of the offending, I note the Court commented that the degree of child pornography exhibited was overwhelmingly in the lowest level of classification, being images and video depicting erotic posing of children with no sexual activity. The Court went on to say that the total range, however, included significant numbers of depictions in the higher categories including nearly 800 in category 4 involving images of children engaged in penetrative sexual activity between children and between adults and children. The Court stated: "These crimes are serious." 11 The Minister accepted the characterisation made by the sentencing judge of the offences as serious [40]. The reasons also referred to the fact that the applicant accepted that the conduct was serious. The reasons stated: 43. I note that both Mr DUNN and his representative have acknowledged that the nature of the harm perpetrated by Mr DUNN "was of the most serious order". Mr DUNN has contributed to the crime of child pornography and the exploitation and abuse of children by the possession of, and making available, child pornography images. I find that his criminal offending is very serious. 12 The reasons then, in the course of further discussing the protection of the Australian community, assessed the risk to the Australian community of the applicant reoffending and concluded: 56. In reflecting on the risk to the community and the need for protection of the community from similar offending in the future, I find that if Mr DUNN re-offended in a similar manner it could result in further exploitation or cause psychological and/or other harm to young persons within the Australian community. I find that the harm to these vulnerable victims would clearly be significant and that such offending is viewed as abhorrent to the Australian community. 57. Based on the information above, I find that Mr DUNN poses a low risk of reoffending, but if that risk were to eventuate great harm could flow to a member or members of the Australian community. I concur with the view of the Court on 17 December 2014 when it stated that "Children anywhere in the world should be afforded protection". [Emphasis added] 13 Then, in the summary of the Minister's conclusions, the reasons stated: 64. Further, I find that the Australian community could be exposed to great harm should Mr DUNN reoffend in a similar manner. I could not rule out the possibility of further offending by Mr DUNN. 14 There is no issue in this application about the Minister's conclusion that the Australian community generally regards child pornography offending as abhorrent. Similarly, there is also no issue about his conclusion that the offences of accessing, possessing or making available child pornography are serious offences involving grave criminal conduct. Again, there is no challenge to the Minister's acceptance of the view of the sentencing judge that "Children anywhere in the world should be afforded protection, and any notion of apparent justification by a sense of removal by distance or effect of the internet is misconceived and in essence simply an exercise in wilful blindness". The Australian legal system takes a serious view of offending involving child pornography by providing for heavy sentences for such conduct. The Minister was entitled to the view that offending involving child pornography was serious. 15 The Minister set for himself one of the questions he regarded as relevant to the consideration of whether the cancellation decision should be revoked. That question was whether, if the applicant did reoffend, there would be serious harm to the Australian community. The question went to the heart of the matter to be addressed when the Minister was considering revoking a cancellation decision. The Minister framed the question by limiting it to the risk of harm to the Australian community. In the context of this case the question thus raised was whether Australian children were in danger of being used in the production of such images. The reasons of the Minister concluded that there was such a danger. 16 Counsel for the applicant argued that there was no evidence that Australian children would be used to make such images and consequently the Minister was not entitled, on the material before him, to conclude that there was a risk of harm to the Australian community if the applicant were to reoffend. A careful examination of the reasons given by the Minister demonstrates that this submission is correct. 17 There is no evidence referred to in the reasons that Australian children are or would be used in making child pornography. Had the Minister relied on such evidence it would have been referred to in the reasons. Section 501G of the Act requires the Minister to provide written reasons for refusing to revoke a cancellation decision, and s 25D of the Acts Interpretation Act 1901 (Cth) provides that such a decision must "set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based". 18 Counsel for the Minister argued that it should be inferred that Australian children may be harmed if the applicant reoffended. But counsel was not able to refer to any fact found by the Minister which supported that inference. In the end, the submission amounted to no more than asking the Court to deduce from the fact that there are many children in Australia that they could be used in the production of child pornography. That is to rely on assumption not inference. 19 Counsel for the Minister further submitted at the hearing that the Minister also relied on the risk that Australian children might be exposed to child pornography. Counsel referred to [56] of the reasons where the Minister stated "I find that if Mr DUNN re-offended in a similar manner it could result in further exploitation or cause psychological and/or other harm to young persons within the Australian community." Counsel contended that the Minister's statement was couched in the alternative, so that while "exploitation" referred to children being made the subject of child pornography, "psychological and/or other harm" referred to the presence of child pornography in the community, which carried a risk of exposure to children. That submission should not be accepted. If the Minister intended to refer to a separate risk that children would be harmed by the viewing of such material, he would have said so. The statement relied upon, read in context, refers to exploitation, psychological and/or physical harm as possible results of being made the subject of such material. That terminology does not readily relate to the consequences of viewing such material. 20 Then, counsel for the Minister argued that the risk of harm to the Australian community was conceded by the applicant so that it was not a matter in issue between the parties. 21 The suggested concession was made in a written submission dated 22 April 2015 from the applicant's lawyer to the Department in support of the revocation application. The submission included reference to the question of the risk to the Australian community if the applicant reoffended. In the opening sentence on this subject the submission stated "it is uncontested that the harm caused by offences involving child pornography is of the most serious order". The submission then continued by arguing that the applicant was unlikely to reoffend and the submission referred to evidence in support of that argument. 22 It is significant that the Minister's reasons referred to the concession but only in the section of the reasons addressed to the seriousness of the offending conduct. The Minister stated: 43. I note that both Mr DUNN and his representative have acknowledged that the nature of the harm perpetrated by Mr DUNN "was of the most serious order". Mr DUNN has contributed to the crime of child pornography and the exploitation and abuse of children by the possession of, and making available, child pornography images. I find that his criminal offending is very serious. 23 The Minister's reasons did not rely on this concession in the section relating to the assessment of the risk of harm to the Australian community. That is to say, the Minister did not rely on the concession for the purpose of filling the evidentiary gap now disclosed. In the context in which it appears in the submission from the applicant's lawyer the statement did not address whether, and hence did not concede that, children who could be used to make such material might be Australian children. 24 It follows that there was no basis disclosed for the crucial link in the Minister's reasoning between the offences committed by the applicant and the asserted risk of harm to the Australian community. The Minister's finding that the applicant posed a risk of harm to the Australian community was a critical finding in the process of making the refusal to revoke decision, and that finding lacked an evidentiary basis. The decision was thus vitiated by jurisdictional error and must be quashed. 25 In view of this conclusion it is unnecessary to deal with the other grounds advanced by the applicant involving allegations that the applicant was denied natural justice and that the Minister took into account irrelevant matters. 26 At the hearing of the application counsel for the Minister argued that s 501CA(4)(b)(ii) provided a threshold to be overcome by the applicant before the Minister was required to consider whether to exercise the discretion to revoke the cancellation or not. Counsel contended that in this case the Minister determined that the applicant did not pass that threshold. The Court raised with counsel the problem which this created for the Minister. In the reasons the Minister found a number of factors in favour of revocation of the cancellation decision, such as the highly compromised health condition of the applicant, and the distress which would be caused to his grandchildren and daughters if he were removed. If the proposed construction was correct and the section involved a two stage test, then it would not have been open for the Minister to hold, as it was then said that he did, that s 501CA(4)(b)(ii) had not been satisfied. The Minister would, on that approach, have applied the wrong test. 27 As this construction of the section had not been raised in the prehearing written submissions, the parties were directed to provide supplementary submissions including on this issue. In his supplementary submissions the Minister resiled from that construction of the section. Again, in view of the conclusion that the decision of the Minister must be quashed, it is not necessary to resolve that construction issue. The section is not free from confusion, but that may be resolved when the matter arises directly. 28 In the result the decision of the Minister is quashed. The Minister is to pay the applicant's costs of the application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.