Gbojueh v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT THE COURT 1 On 22 August 2014, a judge of the Court dismissed an application by the appellant, Mr Gbojueh, to set aside a decision by the Minister to cancel Mr Gbojueh's Class XB Subclass 200 Refugee and Humanitarian Visa under s 501A(2) of the Migration Act 1958 (Cth) (the Act) (Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883). 2 Subsections 501A(1) and (2) were in the following terms as at 13 January 2014 (the date of the Minister's decision): 501A Refusal or cancellation of visa - setting aside and substitution of non-adverse decision under subsection 501(1) or (2) (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person; whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test. Action by Minister - natural justice applies (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. 3 The "character test" in s 501 is relevantly explained by setting out subss 501(6) and (7) as in force at the date of the Minister's decision: Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or (ab) the person has been convicted of an offence against section 197A; or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. 4 The facts that give rise to the decision of the Minister may be shortly stated in terms of [2]-[8] of the reasons of the primary judge: 2 In 2007 he had sexual relations with a 12 year old girl. In 2008 he was convicted in the District Court of South Australia on one count of rape and two counts of unlawful sexual intercourse with a person under 14. He appealed to the Court of Criminal Appeal. The rape conviction was quashed. He was then resentenced to 27 months imprisonment in respect of both of the other two charges on which he was convicted. 3 Mr Gbojueh was scheduled to be released from prison on 3 February 2011. Before his release a delegate of the then Minister cancelled his visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). That subsection empowered the Minister to cancel the visa of a non-citizen if the Minister was not satisfied that the non-citizen passed the character test. That test is defined by s 501(6) of the Act. 4 Mr Gbojueh appealed from this decision to the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal upheld the appeal and set aside the delegate's decision. 5 The then Minister for Immigration and Citizenship considered the Tribunal's decision and determined, pursuant to s 501A(2) of the Act, to set it aside and cancel the visa. 6 Mr Gbojueh sought judicial review of the Minister's decision in this Court. His application was successful on the ground that Mr Gbojueh had been denied procedural fairness by the Minister. This had occurred because the Minister had taken into account prejudicial information on which Mr Gbojueh had not been given the opportunity to comment or make submissions prior to the Minister's decision being made. Other grounds (including some grounds relied on in the present proceeding) were dismissed: see Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 ("Gbojueh (No 1)"). 7 The present Minister gave further consideration to the Tribunal's decision in the light of the Court's decision in Gbojueh (No 1). On 13 January 2014 he determined to set aside the Tribunal's decision and to cancel the visa. He acted, as his predecessor had done, under s 501A(2). 8 Mr Gbojueh has applied to the Court for judicial review of the Minister's decision. 5 The Minister concluded that it was in the national interest to cancel Mr Gbojueh's visa. 6 Before outlining the primary judge's approach, it is convenient to describe the approach of the Minister. 7 The Minister had before him an issues paper and attached documents. That material contained the remarks of the sentencing judges in the District Court of South Australia in two sentencing hearings before and after an appeal to the Supreme Court. It is sufficient for present purposes to refer to para 34 of the reasons of the Administrative Appeals Tribunal of 21 April 2011 (the reasons for the decision that the Minister set aside under s 501A(2)) to understand the material that Mr Gbojueh said was not properly addressed by the Minister: Judge Clayton's re-sentencing remarks reflect the findings of the majority of the Court of Criminal Appeal, as they must do. Furthermore, his Honour referred to the submissions made by the prosecutor regarding the basis upon which Mr Gbojueh should be sentenced. The prosecutor said that the basis should be that the offences committed by Mr Gbojueh were not instituted or encouraged by the victim. His Honour rejected that submission. In fact, he went so far as to say that he could not confidently rely on the evidence of the victim and therefore proceeded to sentence Mr Gbojueh on the submissions made by his counsel. That is, as was stated by the majority in the Court of Criminal Appeal, the victim was the initiator of the sexual contact on both occasions. As distasteful as it may appear, I cannot avoid the conclusion that his Honour Judge Clayton regarded that as a mitigating factor and he reduced the sentence accordingly. 8 At para 67 of his reasons, the Minister said: I have considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) whether cancelling Mr GBOJUEH's visa is in the national interest and (3) all other evidence available to me, including evidence provided by, or on behalf of Mr GBOJUEH. 9 There was no evidence before the primary judge that threw any doubt upon the accuracy of the statement by the Minister about what he had considered in para 67 of his reasons. 10 In his reasons, the Minister did not address, in express terms, the remarks of the second sentencing judge, and, in particular, the question of who initiated or instigated the sexual conduct for which Mr Gbojueh was convicted. In the detailed reasons, the Minister said the following: NATIONAL INTEREST … 22. In deciding whether it is in the national interest to cancel Mr GBOJUEH's visa, I have considered the nature and seriousness of Mr GBOJUEH's two convictions of Unlawful Sexual Intercourse with a Person Under 14 Years of Age. The convictions were for crimes which were: • of a sexual nature; • committed against a vulnerable person, a child under 14 years of age; and • particularly abhorrent due to the consequences which were the pregnancy and resultant termination of that pregnancy of the 12 year old victim. 23. I consider that such offences are particularly serious and repugnant to the Australian community. 24. In light of the above information regarding the nature and seriousness of the offending, I consider that cancellation of Mr GBOJUEH's visa is in the national interest, given the serious nature of the offending. … DISCRETION … 29. I gave key consideration to the protection of the Australian community (taking into account the seriousness and nature of the conduct and the risk to the community should the conduct be repeated), ties to Australia, the best interests of any minor children in Australia and relevant international obligations. Protection of Australian Community Seriousness and nature of conduct 30. I consider that all sexually based offences are serious. Mr GBOJUEH was convicted of sexual offences, two counts of Unlawful Sexual Intercourse with a Person Under 14 Years of Age. 31. Offences against vulnerable victims, such as children are especially abhorrent in my opinion. The offences were committed against a 12 year old girl, herself a refugee from Liberia. 32. The offences resulted in the girl's pregnancy and the subsequent termination of that pregnancy. I consider that the Australian community would regard such offending as repugnant. 33. Mr GBOJUEH incurred a term of imprisonment for the two offences detailed above, further reflecting their serious nature. 34. I have also taken into account Mr GBOJUEH and his representatives submissions that the length of time of the sentence and the reduction in the period of incarceration on appeal as an indicator of how seriously the offences were viewed by the courts. 35. I have taken into account that Mr GBOJUEH has no other convictions recorded against him in Australia or overseas and no breaches of judicial orders. 11 The essential complaint of Mr Gbojueh below and on appeal was that the Minister failed to take into account and consider certain material that was contained in the remarks of the sentencing judge. The complaints before the primary judge were focused upon certain material dealing with the question of the instigation of the sexual contact between Mr Gbojueh and the young girl. These submissions are reflected in [16]-[20] of the reasons of the primary judge: 16 Mr Gbojueh contended that these passages disclosed that the Minister had failed to take into account that he was ultimately sentenced on the basis that the complainant had been the instigator of each of the sexual encounters in respect of which he had been convicted. As a result the sentence of 27 months imprisonment was at the lower end of the available sentencing range. This had been recognised by the Tribunal when it had dealt with Mr Gbojueh's earlier appeal but had not been acknowledged by the Minister. 17 Mr Gbojueh said that the Departmental submissions which had been placed before the Minister prior to his decision included passages extracted from the trial judge's original sentencing remarks but that the judge's remarks, when he re-sentenced Mr Gbojueh after the Court of Criminal Appeal had set aside the rape conviction, were not included. This complaint misstates the position. The submissions contained extracts from both sets of sentencing remarks (see at [34] and [36]). Neither of these passages dealt with the disputed question of whether the complainant had been the instigator of the sexual contact. Full transcripts of both sets of sentencing remarks by the trial judge were provided to the Minister as attachments to the Departmental submissions. 18 Mr Gbojueh submitted that the Minister's failure, in his reasons, to refer to passages in the resentencing remarks and in the Tribunal's reasons, which dealt with the "instigation" and "consent" issues, demonstrated that the Minister had failed to give genuine and realistic consideration to the seriousness of Mr Gbojueh's offending. 19 It was also asserted that the Departmental submissions were misleading because they only contained an extract from the reasons of the Tribunal and that extract concluded at the point where the Tribunal embarked on a consideration of the "consent" question. Again, however, the Minister was provided with the full text of the Tribunal's reasons. 20 Notwithstanding the fact that the Minister had all the relevant information relating to the treatment by the District Court and the Tribunal of conflicting assertions by Mr Gbojueh and the complainant about the "instigation" and "consent" issues, Mr Gbojueh sought to maintain his argument by asserting that the omission from the Departmental submissions meant that there had been a "failure to join the dots." 12 Mr Gbojueh raised an important legal question before the primary judge, and on appeal. Before the primary judge, he sought to distinguish the decision of the majority of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 (Kiefel and Bennett JJ). Before this Court, he argued that the decision was plainly wrong in its construction of s 501 of the Act. Mr Gbojueh submitted that their Honours erred in [74] of their reasons in Huynh when they said the following: A reference to those matters confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501. 13 Mr Gbojueh submitted that the proper approach to s 501 (and also s 501A) was either to be found in the reasons of Wilcox J in Huynh at [43]-[46] or in the approach of the primary judge (Madgwick J) reflected at [22]-[25] of the reasons of Wilcox J, as follows: 22 In his reasons for judgment, Madgwick J noted that s 501 enables the Minister to cancel a visa if the Minister has a reasonable suspicion that the visa holder is not of good character and the visa holder fails to satisfy the Minister that he or she passes the character test. At [28] of his reasons, his Honour went on: The Minister is empowered to exercise a broad discretion once that condition is satisfied. However, the nature of the condition clearly implies (what is also obvious from the subject matter and context) that the extent and degree to which the visa holder falls short of statutory good character is a prime matter for the Minister to take into account in considering how to exercise the discretion, as is the degree and extent of any hardship to the [respondent] and/or any family member lawfully resident in Australia. Where, as here, the possession of a "substantial criminal record" is the manner in which the visa holder does not pass the character test, it is necessarily the case that the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes will be a highly relevant consideration. The usual main source of information is the reasons for sentence of the sentencing court. 23 After noting the practical necessity for the Minister to depend on the officer providing the briefing papers, Madgwick J said at [29]: It is therefore of great importance that such officer should obtain, read, and at least inform the Minister of the gravamen of, the reasons of the appellate court as well as of the primary sentencing judge. His Honour went on to note the ready availability of courts' reasons for judgment. 24 Madgwick J thought the Minister was under a duty to inquire. At [30], he said: It is also clear, as a matter of statutory construction, which must commence with an appreciation of the context and purposes of the relevant legislation, that the Minister must make reasonable inquiry about all the circumstances of the visa holder and family members who might be affected. Where the visa is one allowing permanent residence and it is obvious, as here, that great emotional hardship would ensue to the visa holder and her family if she were deported, that will clearly affect what would be reasonable inquiry in the circumstances. It is, to my mind, inconceivable that any different intention should be ascribed to Parliament, absent the clearest express words. 25 The essence of Madgwick J's decision was set out at [34]-[37] of his reasons. Those paragraphs read: Here, the Minister was not informed of the appellate court's appreciation of the matter, nor of some further, clarifying medical evidence put before the CCA. The impression that the material sent to the Minister consequently gives, under cover of that silence, is that on factual and evaluative matters the CCA had no material difference of approach from that of Judge Woods and that his Honour's remarks were effectively the last judicial word on the [respondent's] culpability for her crime and on mitigatory factors subjective to her. But that was not the case. It is clear that the CCA accepted that there were three factors which mitigated, to some degree, the overall criminality exhibited by the [respondent]. These were that: • the [respondent's] medical condition was, in the light of the additional evidence received by the CCA, rather more serious and fraught with danger of deterioration than the primary judge had thought; and • the [respondent] had had a background fairly described as "deprived and difficult"; [and] • although the CCA considered it a less important factor, the [respondent] had engaged in the heroin supply not coolly for profit but for the purpose of assisting her drug-addicted son, who was himself deserving of a measure of sympathy. The [respondent's] crime was certainly serious. On the other hand, it would appear to involve great hardship to her and her family to banish a sick mother from the society of all of her children and grandchildren. It cannot, in my opinion, safely be said that any of the factors thought important by the CCA, let alone the combination of some or all of them, might not possibly have affected the Minister's ultimate determination of the difficult question that he faced. The departmental submission to the Minister and the unclosed [sic] remarks on sentencing of a/Judge Woods had not recounted some material aspects of the [respondent's] background, warranting the CCA's description of it as deprived and difficult. The medical condition of and outlook for the [respondent], as described to and by the CCA, appeared rather more serious than the material before the Minister indicated: there were more medical conditions and the implications of the [respondent's] psychiatric condition(s) were considerably more worrying then [sic] the Minister was ever told. The Minister acknowledged that "medical services in Vietnam are not comparable" to those in Australia. Finally, that the [respondent] had committed her crime in an auxiliary capacity to her son rather than as an equal director of the criminal enterprise could have been regarded as some reduction in the degree of her criminality which either might have tipped or helped to tip the scales in her favour. The CCA judgment might at least, have caused the Minister to desire further inquiries. The Minister might, possibly, for example, have considered that the [respondent's] risk of recidivism would be reduced to very little if her eldest son had been rehabilitated, a subject on which the papers before the Minister (and the CCA judgment) were silent. Again, the Minister might have been moved to find out more about the son's relatively lenient sentence, in which case he would have been led to understand the unfortunate way in which the [respondent] and her son had, for a time, been encouraged to believe that the son's plea of guilty might, as it were, also wipe clean the slate for his mother. That matter could possibly have weighed with the Minister on the question of hardship.' … 43 It is plainly within the subject matter, scope and purpose of the Act that, in determining how to exercise the discretion conferred by s 501(2), the Minister should have regard to the nature of the person's offence. This is an essential step in assessing the degree of criminality involved in the offence and, therefore, its significance as an indicator of the person's character and the desirability or otherwise of excluding the person from Australia. However, it is for the Minister, as the statutory decision-maker, to determine what information about the circumstances of the offence - that is, on what matters and to what level of detail - he or she wishes to receive in order to exercise the relevant statutory discretion. Deane J made this point in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 378. He said: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. 44 Moreover, in relation to matters which are to be treated as relevant, either because of an expressed or implied command in the relevant statute or the choice of the decision-maker, in the absence of a statutory indication to the contrary, the decision-maker will not usually be bound to obtain the required information from any particular source. In a case involving criminal convictions, it will, no doubt, usually be convenient for the Minister to look to material emanating from the court that dealt with the person under consideration. However, the Minister is not bound to obtain and consider court material; the Minister may choose to rely on other sources for the requisite information. 45 It follows from the above propositions that, in the present case, the Minister was not initially obliged to receive and consider the comments of Woods ADCJ or the Court of Criminal Appeal. The Minister might have decided that he did not wish to know more than that the respondent had been convicted of the statutory supply of heroin and, accordingly, that he did not wish to know anything about the circumstances of that supply, including whether the respondent was acting as a principal in the activity or merely assisting someone else. Moreover, the Minister might have chosen to obtain information, to his desired degree, from a source other than official court records. Whatever view might be taken about the desirability of those choices, none of them would have led to legal invalidity. 46 However, although it is for a decision-maker to determine, in the absence of expressed or implied statutory criteria, what matters he or she proposes to regard as relevant to the making of a particular administrative decision, it seems to me, as a matter of principle, that once the decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly. Although the relevance of that matter would arise, in that situation, from the decision-maker's selection, rather than the command of the statute, the principle enunciated by Mason J in Peko-Wallsend at 44 would apply. His Honour said: Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. (Emphasis in the judgment of Wilcox J) 14 One can detect an important difference between the views of Madgwick J and Wilcox J in Huynh. The former appears to have been of the view that if a criminal record is to be used as the basis for the failure of the character test, the circumstances surrounding the crime and the imposition of sentence will be "highly relevant" (implicitly as a matter of law). The latter appears to accept from the breadth of the language of the provision that it was for the Minister to decide what level of detail as to criminality was relevant, relying on what Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 378; however if a subject was chosen as relevant it had to be considered properly: see [46]. 15 It is unnecessary to deal with the arguments concerning Huynh. The appeal can be disposed of even assuming that the views of Wilcox J or Madgwick J govern the situation. 16 Even assuming that the Minister was bound to have regard to all the circumstances of the offending and sentencing (in these circumstances, the question of whether the sexual contact was instigated by the child) for the reasons given by the primary judge at [21] of his reasons, it was not shown that the Minister did not in fact have regard to this consideration. The primary judge said at [21]: This aspect of Mr Gbojueh's challenge to the Minister's decision fails at a number of levels. In the first place it fails at a factual level. It assumes, without foundation, that the Minister failed to read and consider the attachments and had confined his attention to the material in the body of the Departmental submissions. There is no evidentiary foundation for this assertion. Furthermore, it is clear from the Minister's reasons that he did not confine his attention to the seriousness of the crimes of which Mr Gbojueh stood convicted. He had regard to the age of the victim, the fact that she was, like Mr Gbojueh, a refugee from Liberia, her vulnerability and her resultant pregnancy. Given that, at the time of the offences, Mr Gbojueh was aged 42 and his victim 12 it was open to the Minister to take the view that, even if the victim had been the instigator of the sexual encounters, this was a consideration which carried little or any weight in assessing the seriousness of Mr Gbojueh's offending. It may not be without significance that Mr Gbojueh's legal advisers did not seek to place any reliance on the victim being the initiator of the contact in their written submissions to the Minister opposing the proposed visa cancellation. 17 As was put to counsel in argument on appeal, if the Minister had said in a fourth dot point in para 22 of his reasons (see [10] above) that the crime was or may have been instigated by the 12-year-old girl, but that this was of little or no weight, no complaint could have been made. 18 It was submitted, however, that in the absence of demonstrated express consideration of the question of instigation, the Minister should be taken to have failed to consider all the circumstances of Mr Gbojueh, being the matters referred to by the second sentencing judge about who instigated the conduct. This central submission should be rejected. 19 For the reasons given by the primary judge, and the clear terms of the reasons of the Minister, there is no basis to consider that the Minister did not consider all relevant documentation, including the sentencing remarks of the second sentencing judge. The weight he gave to instigation may be reflected by his lack of express conclusion in the reasons. It was inherently a matter capable of lacking any real weight in the decision of the kind being made by the Minister. 20 The submission that there was some selective consideration of the matters touching and concerning Mr Gbojueh's criminality and sentencing cannot be sustained. The reasons of the Minister disclose that he considered all relevant material, the transcript of the sentencing remarks revealing all relevant aspects of the offending were before him. The reasons disclose no failure to consider all aspects of the criminality; at best, they reveal that the Minister (entirely understandably) ascribed little if any importance to the question of instigation. It should also be appreciated at this point that the sentencing judge found that he was required to sentence on the basis of the submissions put on Mr Gbojueh's behalf - he did not find as a fact that the victim was the instigator. 21 There is no relevant error disclosed in the reasoning of the primary judge, even assuming the arguments about Huynh were to be acceded to. 22 The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justices Kenny and Wigney.