EKC19 v Minister for Home Affairs

1. The decision of the Minister made on 13 August 2018 to cancel the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) be set aside.
2. The respondent pay the applicant's costs, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 13 August 2018, the respondent ("the Minister") made a decision under s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the applicant's Class XB Subclass 204 (Woman at Risk) visa. The applicant has applied for judicial review of that decision under s 476A(1)(c) of the Act.

The Minister's decision 2 The applicant is a national of South Sudan. He arrived in Australia on 6 April 2005 at the age of 11 as the holder of a Subclass 204 visa. 3 On 9 September 2013, the applicant was convicted in the County Court of Victoria of sexual penetration of a child under 16 years and sentenced to two years in a youth justice centre. As a result of his conviction and sentence, the applicant does not pass the character test as defined in ss 501(6) and (7) of the Act. 4 After his release, the applicant, in March 2015, was convicted for breach of his reporting requirements by failing to report a change of residential address. In October 2015 he was convicted on two further counts of failing to comply with his reporting obligations. 5 On 20 February 2017, the Department of Immigration and Border Protection ("the Department") notified the applicant that consideration was being given to cancelling his visa under s 501(2) of the Act. The applicant was provided with an opportunity to put submissions to the Department in response to the Department's notice. On 27 April 2017, Victoria Legal Aid on behalf of the applicant made a submission in response to the Department's notice. Relevantly, that submission: (a) acknowledged that the applicant did not pass the character test on the basis of his conviction and sentence for a charge of sexual penetration of a child under 16 years; (b) noted that the applicant had, during a period of parole, failed to report his change of address but that this was due to a period of homelessness after leaving prison; and (c) noted that Australia had non-refoulement obligations under the Refugees Convention, the International Covenant on Civil and Political Rights and the Convention against Torture not to refoule a person to a country where they face a real chance of being seriously or significantly harmed and contended that such protection obligations were engaged with respect to the applicant, referring to country information and support. 6 On 16 February 2018 Victoria Legal Aid made a further submission to the Department again addressing Australia's protection obligations with respect to the applicant. 7 On 31 May 2018 the Department briefed the Minister about the matter. Relevantly the Department's brief referred to three convictions for failing to comply with reporting obligations. In respect of one of those breaches, the Department stated that it was "a result of [the applicant] experiencing a period of homelessness after leaving prison". 8 On 13 August 2018, the Minister decided to cancel the applicant's visa under s 501(2) of the Act. In his reasons, the Minister stated that he found that the applicant did not pass the character test. The Minister then considered whether to exercise his discretion to cancel the applicant's visa. Under the heading "Protecting the Australian Community", the Minister referred to the applicant's criminal conduct and gave consideration to the nature and seriousness of the applicant's criminal offending, concluding that his conviction for sexual penetration of a child under 16 years was very serious. The Minister also noted that the applicant had been fined for one count of failing to report a change of residential address and two counts of failing to comply with reporting obligations. Under the heading "Risk to the Australian Community", the Minister gave consideration to whether the applicant 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 the applicant has undertaken to reform and address his behaviour. The Minister also took into account the applicant's overall conduct since his offending and his insight into the offending. The Minister said, relevantly: 37. I acknowledge [the applicant's] statements of remorse and accept this lessens the risk of his re-offending. However, I also note that [the applicant] has failed to comply with his reporting obligations on three occasions. I find this shows [the applicant] is still lacking insight into the repercussions of his offending which increases the risk of him re-offending. … 40. I have noted that during his period of youth parole, [the applicant] was fined for failing to report his change of address as per the requirements of the Sex Offenders Register. I have considered that this breach was a result of [the applicant] experiencing a period of homelessness after leaving prison. 41. I note with concern that [the applicant] was convicted of two counts of fail comply with reporting obligations in October 2015, for which no explanation has been offered. This demonstrates a disregard for the law that I find concerning as the behaviour was repeated despite [the applicant] knowing there were consequences and I find that this is indicative of his propensity to re-offend. 42. I acknowledge the conclusion drawn in 2013 by Dr Julie Janev, a forensic psychologist, that [the applicant] had a strong potential for rehabilitation, is classified as a low risk of recidivism, has good insight into his existing diagnoses and motivation to live away from the criminal justice system. I have also considered that Dr Janev concluded that when combining [the applicant's] score on the Static 2000R tool with his assessment of dynamic risk factors, he was classified as a being at a low risk of sexual recidivism. However, I have also considered Her Honour's comments during sentencing that she was very concerned about the very high scores obtained by [the applicant] on the intimate interpersonal and sadomasochistic fantasy scales on the sexual deviance assessment tool used. Her Honour found [the applicant] had a low general risk of recidivism, but in her view 'an unascertainable risk of sexual recidivism'. 43. I acknowledge [the applicant's] traumatic childhood, efforts at rehabilitation and his remorse. I consider that his rehabilitation has been tested in the community for a relatively short time and during this period, [the applicant] failed to comply with reporting obligations. I am especially mindful of Her Honour's comments during sentencing that [the applicant] has an unascertainable risk of sexual recidivism. 44. I find there is an ongoing likelihood that [the applicant] will re-offend, albeit a low likelihood. (Errors in original.) 9 Under the heading "International Non-Refoulement Obligations" the Minister said: 51. [The applicant] has made claims that may give rise to international non-refoulement obligations. I note [the applicant's] statement that would face hardship arising from his Nuer ethnicity and Christian religion were he to return to South Sudan. 52. Additionally, I note [the applicant's] submission that while it is unlikely he is eligible for citizenship of Ethiopia, non-refoulement obligations are also engaged in respect of Ethiopia. 53. I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application. 54. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that the Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501 of the Act. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa. 55. I have also considered [the applicant's] claims of harm upon return to South Sudan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant's claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from famine and civil war were he to return to South Sudan. 56. I note that [the applicant] was born in Ethiopia and his father lives there. Further, I have considered that to the best of his knowledge, [the applicant] does not have, nor does it appear he is eligible for Ethiopian citizenship. I accept that regardless of whether [the applicant's] claims are such as to engage non-refoulement obligations in relation to Ethiopia, [the applicant] would face hardship were he removed to Ethiopia. (Errors in original.) 10 The Minister concluded: 86. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other information available to me, including information provided by, or on behalf of [the applicant]. 87. I reasonably suspect that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test. 88. [The applicant] has committed a very serious crime, that of sexual penetration of a child under 16 years, which is of a sexual nature, and involved a vulnerable member of the community, that being a minor who was in [the applicant's] care at the time of the offence. [The applicant] and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia. 89. I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm. 90. I found the above consideration outweighed the countervailing considerations in [the applicant's] case, including the impact on family members. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community, the consequences of my decision for family members and the substantial hardship [the applicant] will face if he returns to South Sudan. 91. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for the majority of his life. 92. In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. 93. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the applicant's] Class XB, Subclass 204 Woman at Risk under s501(2) of the Act. (Errors in original.) 11 The applicant has alleged three legal errors in the reasoning of the Minister as follows: 1. The Minister purported exercise of discretion to cancel the applicant's visa was unreasonable and/or was affected by irrationality. Particulars (a) Under the heading "Risk to the Australian Community", the Minister stated at [37]: "I acknowledge [the applicant's] statements of remorse [for his offence) and accept this lessens the risk of his re-offending. However, I also note that [the applicant] has failed to comply with his reporting obligations on three occasions. I find this shows [the applicant] is still lacking insight into the repercussions of his offending which increases the risk of him reoffending." (b) It was unreasonable or irrational to find that the applicant's failure to comply with reporting obligations on three occasions was "lacking insight into the repercussions of his offending", and to take such a finding into account in exercising the discretion under section 501 (2) of the Act. (c) First, such a finding a finding is incompatible with the Minister's finding at [40]: "I have noted that during his period of youth parole, [the applicant] was fined for failing to report his change of address as per the requirements of the Sex Offenders Register. I have considered that this breach was the result of [the applicant] experiencing a period of homelessness after leaving prison." (d) Secondly, especially in circumstances where the Minister apparently acknowledged the applicant's statements of remorse as genuine, there was no rational connection between a finding that the applicant had failed to comply with reporting obligations on two (or three) occasions and "the repercussions of his offending". 2. The Minister failed to carry out his statutory task by misunderstanding the Act or its operation in purporting to make his decision. Particulars (a) The applicant claimed that his visa should not be cancelled, because to do so would expose him to removal to South Sudan where he would face a real chance of harm, and would result in the breach of Australia's nonrefoulement obligations. (b) The Minister thought it "unnecessary" to consider this matter, because the applicant was "able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application". (c) The Minister's decision as affected by three misunderstandings. i. Firstly, the Minister incorrectly assumed that the applicant's protection claims would "necessarily" be considered in the event that the Applicant was to make an application for a protection visa. ii. Secondly, and further alternatively, the Minister incorrectly assumed that the applicant's protection claims would be considered in the same way if he applied for a protection visa, where the circumstances in which consideration of non-refoulement occurs are different as between the exercise of the discretionary revocation power in section 501 (2) of the Act and the determination of a visa application under section 65 of the Act. iii. Thirdly, and further or alternatively, the Minister incorrectly assumed that "the existence or otherwise of non-refoulement obligations would be considered" in the event that the applicant made an application for a protection visa. That is not so, as the criteria for a protection visa under section 36(2) substantially differ from, and do not reflect, Australia's non-refoulement obligations. 3. Further or alternatively to ground 2, the Minister's purported consideration of "the impediments that [the applicant] will face if he was voluntarily removed from Australia to [South Sudan]" ([73]-[85], [90]): (a) did not involve a consideration of the matter identified above; and (b) in any event, did not involve a real or whole or genuine consideration of the prospect of the claimed human consequences of the applicant returning to South Sudan (including possible death). (Errors in original.)