Dunn v Minister for Immigration and Border Protection [2017] FCA 1328 | Case summary

CONSIDERATION 25 I do not consider Mr Dunn established that the Minister made a jurisdictional error. 26 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] Gleeson CJ observed that procedural fairness is concerned with avoiding "practical injustice" and there is no denial of procedural fairness where no practical injustice has been shown: see also NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 (NBNB) at [4] (Allsop CJ and Katzmann J). 27 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592 (Northrop, Miles and French JJ) the Full Court said that the entitlement to procedural fairness: …extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. (Emphasis added.) 28 In Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 (Applicants M1015/2003) at [54], cited with approval in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (Picard) at [38] (Tracey J), Weinberg J explained: Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance. (Emphasis added.) 29 First, the Department's letter of 17 March 2015 informed Mr Dunn that Direction 65 identified issues relevant to the consideration of whether to revoke the visa cancellation decision, and that if he decided to make representations seeking revocation of that decision he should address each paragraph in Part C of Direction 65 relevant to his circumstances. The content of the obligation to provide procedural fairness is influenced by the provisions of Direction 65: Picard at [41]. 30 Part C of Direction 65 lists the primary considerations in relation to revocation of a mandatory cancellation of a visa under s 501CA. In the present case the relevant part of Direction 65 is paragraph 13.1 headed "Protection of the Australian Community". It states: 13.1 Protection of the Australian Community When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community… Decision-makers should also give consideration to: (a) The nature and seriousness of the non-citizen's conduct to date; and (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. (Emphasis added.) It includes subparagraph 13.1.1 headed "The nature and seriousness of the conduct" and subparagraph 13.1.2 headed "The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct". 31 In the context of Mr Dunn's offending, and the risk of his reoffending, paragraph 13.1 of Direction 65 operated to inform him that the Minister's primary considerations would include protection of the Australian community (including individuals in the community) from harm through exposure to child pornography. The starting point of any such consideration was likely to include protecting Australian children from corruption and exploitation through direct involvement in such pornography, and to discouraging the market for child pornography in Australia which might lead to such corruption, but it would plainly extend further than that. Reoffending by Mr Dunn would contribute to encouraging the market for child pornography in Australia, and individuals and groups in the Australian community might be directly exposed to child pornography in a variety of different circumstances as a result. 32 One should not lose sight of the essential facts of Mr Dunn's offending. He pleaded guilty to accessing, possessing and making available child pornography materials which included nearly 800 items depicting penetrative sexual activity between children and between adults and children. He accepted that his offending was of the most serious order. His contention - that it was not apparent to him that the Minister's consideration might contemplate the psychological harm that might be suffered by persons exposed to child pornography in the course of policing and administering the criminal justice system - must be considered in the light of his offending. 33 Having regard to Mr Dunn's offending, it is obvious that any consideration of protecting the Australian community from a risk of harm through child pornography would include consideration of the risks of psychological harm which people might suffer as a result of exposure to such materials. Particularly given the depravity of the child pornography with which Mr Dunn was involved it should have been apparent to him that the Minister's consideration was likely to include consideration of the risk of harm to individuals in the Australian community who might be exposed to such disturbing materials. That includes people working in the criminal justice system. It is obvious that people required by their employment to closely view, collate and/or consider disturbing child pornography, such as police officers, employees in the relevant prosecuting authorities (e.g. the Office of Public Prosecutions) and/or court staff dealing with criminal charges, might suffer some form of psychological harm as a result. Counsel for Mr Dunn effectively acknowledged the existence of this risk by arguing that job-based counselling would be available to mitigate the harm that might be suffered. 34 It is not relevant in the present case, but it should also have been apparent to Mr Dunn that the Minister's consideration might extend to the risk of harm to persons indirectly affected by child pornography. It takes little thought to appreciate that the parents and siblings of a child who is somehow drawn into sexual activity through exposure to child pornography might suffer significant psychological damage. 35 The guiding principle is one of fairness and judgments about practical justice and fairness are largely dependent upon the particular facts of the case: Picard at [38] citing Applicants M1015/2003 at [54]. It was not necessary for the Department to expressly inform Mr Dunn that the Minister's consideration would include the risk of psychological harm to persons exposed to child pornography while working in the criminal justice system. Although the risk to that subset of the community was not expressly identified it was obvious that the Minister's consideration might extend to all persons who faced a risk of psychological harm through being so exposed. The Department was not obliged to provide Mr Dunn with a breakdown of the groups within the Australian community that might be exposed. 36 I take a similar view in relation to the increased cost to the community of policing and administering the criminal justice system. Paragraph 13.1 of Direction 65 refers to the primary consideration of "protecting the Australian community from harm as a result of criminal activity" by non-citizens. It does not restrict the "harm" to just physical or psychological harm. On the plain words of the paragraph the risk of harm to be considered is broad and I consider it includes financial or economic harm. That must be the case when some serious criminal offences may cause only financial or economic harm (e.g. white-collar crimes such as embezzlement). 37 At the time he made representations to the Minister, Mr Dunn had served a term of imprisonment for his offences and he must have had a general understanding of the significant costs involved in charging, convicting and imprisoning him. It was blindingly obvious that a consequence of his reoffending would include further costs to the community of that nature. Although he could not know the precise quantum of such costs he would know they were significant. It should have been apparent to him that the Minister might consider the risk of such financial harm. There was no obligation on the Department to specifically put that risk to him for comment. 38 The decisions in Durani and Jione are of limited assistance. Both those decisions were made in different factual circumstances and in the context of s 501A(2) of the Act, under which the Minister's power to set aside a decision of the Administrative Appeals Tribunal and to cancel a visa is conditional upon him being satisfied that it is in the "national interest" to do so. They each involved different considerations to the present case. 39 The decision in Jione has some similarities to the present case but it can be distinguished having regard to the different statutory context and factual circumstances. In that case Mr Jione was convicted of a serious assault and the Minister said that if he were to re-offend in a similar manner "individuals and the community would be subjected to additional significant harm and the community would be required to bear any related law enforcement and medical costs." In setting aside the Minister's decision for jurisdictional error Buchanan J said (at [54]) that: I do not think it would have been obvious to the applicant (or should have been apparent to him) that the past economic consequences of his conduct (i.e. on the community as a whole), or the possible future economic cost to the community of some further offence, would be taken into account, whether as relevant to the national interest or otherwise. 40 As is apparent from this passage his Honour's decision was concerned with the "national interest". His Honour said (at [44]) that the concept of "the national interest" is broad, but it is not devoid of content, and he concluded that it would not have been sufficiently apparent to Mr Jione that the Minister would decide that the possibility of costs to the community through future reoffending generates a "national interest" in avoiding that possibility. That is a different question to whether it should have been apparent to Mr Dunn that the Minister's consideration of protecting the Australian community from harm might include the economic harm the community would suffer through the costs of apprehending, charging, convicting and incarcerating him. Jione has limited bearing on the present case when the future economic cost of any possible reoffending is more closely connected with protecting the Australian community from economic harm than it is with the "national interest". 41 In Durani, the applicant, a doctor, was convicted of sexual offences against a patient and his visa was cancelled. In refusing to revoke the visa cancellation decision the Minister said that the applicant's offending "undermined the integrity of the skilled migration program." In setting aside the Minister's decision the Full Court said that the Minister failed to accord the applicant procedural fairness by not identifying to him that the issue might be taken into account. Their Honours said (at paragraphs [68]-[69]) that: In the present case, characterising the appellant's criminal convictions by reference to bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was not apparent from the nature of the decision or the terms of the statutory power. … In our opinion it is not sufficiently apparent from the facts and circumstances of the case and the statutory criterion that where criminal convictions stem from the skill or qualification by reference to which a visa was granted, those criminal convictions will bring the skilled migration program into disrepute or undermine public confidence in it or undermine its integrity or that cancellation of the visa would, or would tend to, restore that reputation or public confidence in the migration program or its integrity. This decision has little bearing on whether, in the present case, it should have been sufficiently apparent to Mr Dunn that as part of considering the protection of the Australian community from harm the Minister might give consideration to the possibility that any reoffending on his part might cause economic harm through increased policing and other costs in the criminal justice system or that persons in the criminal justice system exposed to child pornography might suffer psychological harm. 42 Second, generally speaking, in cases where a decision-maker has had regard to adverse material without informing the affected person of that material, before practical injustice can be demonstrated it is necessary to show that the material is an "important" aspect of a case the person has to meet, a "critical issue or factor", or something that is "likely to have an effect upon the outcome": NBNB at [5] and [156]; Applicants M1015/2003 at [54]; Kioa v West (1985) 159 CLR 550 at 587 (Mason J); Alphaone at 591. 43 If (contrary to my view) it cannot reasonably be said to have been sufficiently apparent to Mr Dunn that the Minister might take into account the considerations raised in paragraph 69, I do not consider those matters to have been important enough to the case that Mr Dunn was required to meet such that he suffered practical injustice. Mr Dunn's case hinges entirely on one subsidiary passage in the Minister's reasons and the two postulated risks in that paragraph were not critical aspects of the decision. 44 Paragraph 69 appears under the primary heading "Protecting the Australian Community" which is broken down into two subheadings "Criminal conduct" and "Risk to the Australian community". 45 Under the heading "Criminal conduct" (at paragraphs 37 to 48) the Minister considered the nature and seriousness of Mr Dunn's offending. The Minister noted that the child pornography included nearly 800 depictions involving images of children engaged in penetrative sexual activity with other children and between adults and children, that the possessing and viewing of such material promotes demand for child pornography which leads to the victimisation and exploitation of children and is a permanent record of their abuse. He said that Mr Dunn had contributed to the crime of child pornography and the exploitation and abuse of children by possessing and making available child pornography images. He concluded that Mr Dunn's sexual offences were serious and noted that Mr Dunn had acknowledged that the nature of the harm perpetrated by him was of "the most serious order." 46 Under the heading "Risk to the Australian Community" (at paragraphs 49 to 69) the Minister noted Mr Dunn's submission that there was no evidentiary basis in the material before the Minister to indicate that he posed any risk to the Australian community. The Minister considered the risk of Mr Dunn reoffending, including by noting that Mr Dunn admitted to a consultant psychologist that he became sexually aroused when viewing images and videos of girls aged approximately eight and ten, that he acknowledged that he required treatment and intended to fully cooperate with treatment, that he was adamant that he would never have progressed to having any sexual contact with minors, that he had expressed remorse and demonstrated insight into his offending, and that Judge Mason assessed that he had reasonably favourable prospects for rehabilitation. The Minister noted the submission that there was no correlation between Mr Dunn's offending and any risk to the Australian community and no evidence that he poses a risk to Australian children. 47 The Minister noted, however, that in April 2016 Mr Dunn had been found in possession of a number of newspaper articles showing pictures of underage children. The Minister noted Mr Dunn's submission that there was nothing illegal or improper about his possessing those images and that it was legally unreasonable to postulate about his intent or purpose for doing so. The Minister concluded, however, that Mr Dunn's possession of the pictures of underage children suggested that he maintained an ongoing interest in viewing such images which reflected negatively on his rehabilitation prospects and was a cause for concern regarding a risk of recidivism. The Minister also noted that through circumstances beyond his control Mr Dunn had been unable to participate in a sexual offender's treatment program and his determination to refrain from reoffending had not been tested in an unsupervised capacity in the community. 48 The Minister said at paragraphs 67 and 68: In reflecting on the risk to the community and the need for protection of the community from similar offending in the future, I note the sentencing judge's comment that conduct such as Mr Dunn's is not a victimless crime and "creates a market for the corruption and exploitation of children" noting further that such activity "quite rightly outrages the Australian community". I note also the judge's express reference to the fact that he was required by the relevant state legislation to regard the protection of the community from Mr Dunn as the principal purpose for which the sentence was imposed. I accept that, as the material was accessed via the internet and as the production and distribution of child pornography is global, the correlation between this offending and the risk of harm to the Australian community is less evident than is the case with some other types of offending. However, I find that if Mr Dunn reoffended in a similar manner such offending contributes to the market for child pornography and it is not inconceivable that Australian children could be involved in the production of such pornography. Also, any encouragement of the market for child pornography in Australia risks increasing the presence of such material in Australia with the attendant risk that the Australian community will be exposed to it and harmed as a result. (Emphasis added in bold.) 49 On a fair reading of the Minister's reasons, those two paragraphs encapsulated the main thrust of the Minister's reasons in relation to protection of the Australian community. Paragraph 69 which followed was subsidiary. The Minister refused to revoke the original decision to cancel Mr Dunn's visa because Mr Dunn had committed serious child pornography offences and there was an ongoing risk that Mr Dunn would reoffend. The Minister considered such offending contributes to the market for the corruption and exploitation of children in Australia, that it was not inconceivable that Australian children could be involved in the production of such pornography and that any encouragement of the market for child pornography in Australia carries an attendant risk that the Australian community will be exposed to it and harmed as a result. Protecting Australian children from the risk of harm through child pornography was the central consideration. 50 On a fair reading, the economic cost of policing and administering the criminal justice system and/or the risk of psychological harm to people exposed to child pornography when policing and administering the criminal justice system were not important to the case Mr Dunn was called on to meet or to the Minister's decision. 51 Third, in my view any omission to inform Mr Dunn of the considerations raised in paragraph 69 could not realistically have made any difference to the outcome. 52 The Minister did not refer to any evidence in support of those considerations and Mr Dunn did not suggest that he could have put on evidence in opposition. Mr Dunn said only that had he been made aware that the Minister might take those considerations into account he could have made submissions to the effect that: (a) economic cost is not relevant to the risk of harm to the Australian community, risk being a different concept; (b) there is no evidence that persons exposed to child pornography may suffer psychological harm, and it is merely speculative; (c) it is part of the job of persons engaged in the criminal justice system to deal with child pornography, and counselling is available for psychological injuries that may arise; and (d) in a prosecution for child pornography, although someone has to make an initial assessment of whether material is child pornography, after that point it would be rare that anyone needed to view the material, unless there was a contest as to the classification of it. 53 As the High Court said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane, and Dawson JJ) "[i]t is no easy task for a court… to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome." Cases such as the present in which (on Mr Dunn's submissions) the Minister had regard to adverse material without informing him of that material are not usually considered to be in that category. In such cases the "practical injustice" is generally found in the circumstance that the person affected has been denied the opportunity to address the adverse material. If the adverse material "might realistically have affected the outcome", or if it is not possible to conclude that the decision-maker acting reasonably could not have come to a conclusion favourable to the person affected, the decision-maker will have failed to discharge the onus to establish that the breach could have had no bearing on the outcome: Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123 at [107]-[113] (Dowsett, Murphy and White JJ) citing with approval Dagli v Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541; [2003] FCAFC 298 at [95] and [97] (Lee, Goldberg and Weinberg JJ). 54 However, as Weinberg J said in Applicants M1015/2003 (at [54]), some information is factual and incontrovertible. In my view, if Mr Dunn reoffends, it is incontrovertible that the community will suffer increased costs in policing and administering the criminal justice system, and that some persons involved in policing and administering criminal justice might suffer psychological harm. Amongst other things: (a) as Mr Dunn submitted, economic cost is a different concept to a risk of harm, but that eludes the point. A risk of financial or economic harm to the community is a type of harm contemplated by Direction 65; (b) there is nothing that Mr Dunn could submit to rebut the fact that, if he reoffends, there will be an increased economic cost to the community; (c) the Minister's reasons did not say that it was certain, or even probable, that persons involved in policing and administering criminal justice would suffer psychological harm if they were exposed to child pornography. The Minister merely said that such persons may suffer harm. It is incontrovertible that persons required through their employment to view, collate and/or closely consider the disturbing child pornography with which Mr Dunn was involved face a risk of psychological injury; (d) the contention that exposure to serious child pornography material is simply part of the job for people working in the criminal justice system does not negate the risk of psychological harm, it merely seeks to justify it; (e) the fact that counselling and other support services are likely to be available to people forced to view, collate and/or closely consider such material in the course of their employment may operate to mitigate the risk of psychological harm but, realistically, it cannot remove it; and (f) the fact that only a small number of people in the criminal justice system may be required to view, collate and/or closely consider such material does not negate the risk of psychological harm to those people. It just reduces the number of people who might be affected. 55 For these reasons I have made orders to dismiss the application.

Dunn v Minister for Immigration and Border Protection

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Judgment (7 paragraphs)

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Cases Cited (26)

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