Background facts
14 The following statement of the background facts is based on the material in the Application Book. In particular, the facts are drawn from the Statement of Reasons.
15 The applicant arrived in Australia aged six or seven in the 1950s and became a permanent resident at the age of 16 years in 1966. He has resided in Australia since then.
16 The applicant volunteered to join the Australian Army in the late 1960s. He undertook basic training in New South Wales and Victoria. In 1969, he was posted to Vietnam, where he served in the First Armoured Regiment. Several months after he arrived in Vietnam, he was involved in extinguishing a fire that directly threatened an ammunition bunker, at one stage climbing on the bunker, without regard for his own safety. For this act of bravery, the applicant received a Mention in Despatches. At the expiration of a 12 month tour of active duty, the applicant volunteered again to extend his tour by several months, to help his regiment, as there was a shortage of non-commissioned officers at that time. The Minister, in the Statement of Reasons, accepted the submission that the applicant had "given service and made sacrifices that few naturalised citizens have or are required to make".
17 After his army discharge, the applicant performed paid employment in a variety of roles including foreman, technician, motor vehicle and real estate salesman, property manager and property developer. The Minister, in the Statement of Reasons, accepted the submission that the applicant had "worked and paid taxes in Australia for almost all of his working life".
18 The applicant is married to an Australian citizen. They married in 1986 and have two adult children together. Until his imprisonment (and subsequent immigration detention), the applicant lived with his wife in their home in New South Wales.
19 In the course of the applicant's war service, he acquired PTSD, which continues to affect his life. The applicant also suffered from alcoholism following his war service. The Minister in the Statement of Reasons accepted the evidence that there was "a nexus between his war service, the PTSD, [the applicant's] subsequent alcoholism and the offending which caused his visa to be cancelled".
20 In 2011-2013, the applicant engaged in the offending that led to his being charged with child pornography offences.
21 On 13 March 2013, the Australian Federal Police executed a search warrant at the applicant's home. Seven electronic devices were seized for forensic analysis, and child abuse material was located on five devices. Following analysis, the police identified many thousands of items of child abuse material. A proportion of the material was analysed in order to classify the images in levels of seriousness across five levels. The material was found to contain images at all levels of seriousness. The Australian Federal Police estimated that there were at least 100 different child victims depicted in the images and videos possessed by the applicant. The material before the Minister did not indicate whether the victims in the images downloaded by the applicant or found in his possession were Australian citizens or residents.
22 On 25 June 2014, the applicant was convicted of two offences: one count of "Use carriage service for child pornography material" and one count of "Produce, disseminate or possess child abuse material". He was sentenced to a term of imprisonment of two years for the first offence and one year and three months imprisonment for the second offence. The total effective term of imprisonment was two years and three months, with a non-parole period of 15 months.
23 The applicant has not been convicted of any other criminal offences in Australia.
24 The applicant pleaded guilty to the offences.
25 The sentencing judge found the applicant's offending to be "just below the middle of any scale constructed for such offences" and the Minister in the Statement of Reasons adopted this finding.
26 On 29 June 2015, a delegate of the Minister cancelled the applicant's visa under s 501(3A).
27 In accordance with the statutory scheme, the applicant requested revocation of the cancellation decision, and made representations in support of that request. The applicant's representative at this stage was Michael Gros. In a submission received by the Department of Immigration and Border Protection (the Department) on 27 July 2015, Mr Gros made submissions on the applicant's behalf. The submissions responded to various issues identified in Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), a Ministerial direction dated 22 December 2014. In correspondence sent to the applicant, it had been explained that he should address each paragraph in Pt C of Direction 65 that was relevant to his circumstances. That correspondence had also explained that if the decision-maker who made the decision regarding whether or not to revoke the cancellation decision was a delegate of the Minister, he or she was required to follow Direction 65. If, however, the Minister made the decision personally, he or she was not bound by the direction, "although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa".
28 In the submission received on 27 July 2015, under the heading "The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct", which reflected one of the headings in Direction 65, Mr Gros acknowledged the seriousness of the offences and then submitted:
On the other hand, the very nature of the offences, the subject of the two convictions are such that the removal of the applicant from Australia will not have the effect of reducing the risk to the Australian community from the commission of [the] same or similar offences as the offending material [the] subject of the charges may be readily downloaded or kept in a person's possession as long as the applicant has access to [the] internet.
29 This point was reiterated later in the submission. Mr Gros submitted that: both offences merely required access to an internet provider; accordingly, removal of the applicant from Australia to New Zealand "would not in any way diminish the risk" of the applicant committing the same type of offences; therefore, deportation would not have the effect of reducing the risk of commission of such offences against the Australian community, which was the stated objective of this particular primary consideration.
30 In an email submission dated 16 May 2016, Mr Gros submitted that the nature of the offences was such that "the removal of the offender would have no practical effect on him reoffending as it can be committed anywhere and there is no suggestion of [the applicant] having propensity to commit other offences involving young children or indeed requiring to undergo a treatment for any propensity". Consequently, it was submitted, the legislative intention of protecting Australians and members of the community would not be achieved by the removal of the applicant from Australia.
31 In support of the request for revocation, the applicant relied on a report of Dr Allnutt dated 24 March 2014. The report expressed the opinion that the applicant manifested "a weighting of protective factors and a few perpetuating factors that can [be addressed] through treatment". The report continued:
There is limited information that allows for an evidence-based opinion with regard to the risk of future recidivism. In this case I have been guided by the kinds of factors that are associated with increased risk of recidivism for people who engage in sexual offending in general and it is important for the Court to take into consideration that people who are convicted of child pornography crimes in the absence of a prior history of actual sexual offending might be a different population to those that engage in direct sexual offending with children.
Any opinion on risk of recidivism is more professional than scientific, identifies the at risk population that the person falls into, can fluctuate over time, and is of moderate accuracy.
Overall having regard to the information provided to me I believe that your client, in my clinical view, falls into a group of sex offenders at the lower end of the risk spectrum for future sexual recidivism both for child pornography and hands on offending.
32 On 22 July 2016, the Minister decided not to revoke the cancellation decision. This decision was set aside by a consent order made by this Court and the matter was remitted to the Minister.
33 After the matter was remitted to the Minister, the applicant provided further submissions in support of revocation of the cancellation decision. His agent at this stage was GLC Migration. In a submission dated 21 April 2017, GLC Migration addressed the issue "The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct" and reiterated the submissions of Mr Gros in this regard. They submitted:
We strongly submit that any risk to the Australian community is not mitigated by physical removal of [the applicant] from Australia. To the contrary, we submit that any future risk to the Australian community and to the community as a whole would be mitigated by ensuring [the applicant's] rehabilitation. We note that due to the nature of the internet, an individual can download child pornography regardless of their geographic location.
(Emphasis in original.)
34 A further report of Dr Allnutt, dated 22 April 2017, was provided. This report contained statements to the same effect as the statements in the first report that have been quoted above.
35 On 11 August 2017, the Department provided a submission to the Minister. Attached to the submission were relevant documents, including the submissions of Mr Gros and GLC Migration and the reports of Dr Allnutt.
36 On 16 August 2017, the Minister made the Decision and signed the Statement of Reasons.
37 The Minister stated, at [11] of the Statement of Reasons, that in undertaking the task he had assessed all of the information set out in the attachments (to the Department's submission); in particular, he had considered the applicant's representations and the documents he had submitted in support of his representations regarding why the cancellation decision should be revoked. At [12], the Minister referred to the applicant's claims that he did not pose a risk to the Australian community, and that his removal would not lessen the risk of the commission of such offences against members of the Australian community.
38 The Statement of Reasons was structured under the following headings:
(a) Best interests of minor children.
(b) Expectations of the Australian community.
(c) International treaties/conventions.
(d) Strength, nature and duration of ties.
(e) Extent of impediments if removed.
(f) Protecting the Australian Community.
(g) Conclusion.
39 In the section on "Strength, nature and duration of ties", the Minister described in some detail the contribution the applicant has made to Australia and the support that he has received from his family. In particular, the applicant's wife and adult children provided strong submissions in support of the applicant. The consequence of removing the applicant to New Zealand would be the applicant's "physical separation from his wife of three decades, his adult children, his brothers and other family members".
40 In the section on "Extent of Impediments if removed", the Minister described parts of Dr Allnutt's 22 April 2017 report, including that removal of the applicant from Australia "would act as a stressor" and lead to a deterioration in his mental state. The Minister found that removal of the applicant to New Zealand "will cause him significant emotional hardship which has the potential to adversely affect his diagnosed psychological and psychiatric conditions and his rehabilitation".
41 In the section on "Protecting the Australian Community", the Minister addressed the applicant's criminal conduct, describing it as "very serious notwithstanding his medical and psychological conditions", and the risk to the Australian community. The Minister described the reports of Dr Allnutt in some detail. At [118], the Minister stated:
While Dr Allnutt qualified his assessment, noting that any opinion on the risk of recidivism is of moderate accuracy, he believed that, overall, [the applicant] 'falls into a group of sex offenders at the lower end of the risk spectrum for future sexual recidivism both for child pornography and hands on offending'. If [the applicant] pursues sex offender focussed psychological treatment, remains abstinent of substances and maintains his social supports and relationships with his wife, Dr Allnutt opined that 'any risk [the applicant] might pose would be further mitigated', noting that [the applicant's] engagement in treatment 'provides further confidence with his prospects for risk reduction'.
42 The Minister stated, at [122], that having regard to all the information before him, he considered the likelihood of the applicant reoffending to be "low". The Minister then stated:
123. It also was submitted by Mr Gros that removal of [the applicant]: 'will not have the effect of reducing the risk to the Australian community from the commission of same or similar offences as the offending material subject of the charges may be readily downloaded or kept in a person's possession as long as the applicant has access to internet' and it 'would not in any way diminish the risk of the applicant committing the same type of offences while in New Zealand'. Mr Lombard similarly submits that any risk of harm to the Australian community is not mitigated by [the applicant's] geographical location, so it would not be mitigated by his removal as an individual can download child pornography regardless of his location.
124. In April 2017, Dr Allnutt also considered this issue. He opined that removing [the applicant] to New Zealand 'would not necessarily reduce risk that he might pose to children in an international sense'.
125. I have taken these [submissions] into account, noting that [the applicant's] representatives have acknowledged the ease with which [the applicant] could re-offend, in Australia or overseas.
126. Given that [the applicant] was assessed by Dr Allnutt as at the lower end of the risk spectrum, not only for child pornography offences but also for 'hands on offending', I do not accept the submission that [the applicant's] removal will not reduce the risk to the Australian community.
127. I am mindful of the nature of the harm caused by the proliferation of child pornography, an offence which is not a victimless crime. Furthermore, I find that people who possess child pornography for their own use create a market for the exploitation of children. If [the applicant] were to re-offend by accessing and possessing child pornography in Australia, his actions may contribute to a market for the production of such material, including in Australia, with potentially grave physical and/or psychological consequences to the child victims.
43 The Minister then set out his conclusions. These included that, having found that the applicant posed a low likelihood of reoffending, the Minister could not rule out the possibility of further offending. The Minister also concluded that the applicant "represents an unacceptable risk of harm to the Australian community" and that "protection of the Australian community outweighed the best interests of minor members of his extended family … and other countervailing considerations".