Hambledon v Minister for Immigration and Border Protection

Federal Court of Australia|2018-01-11|Before: Kenny J

Ground 3 of the applicant's amended application for judicial review be stood over for mention on a date to be fixed, not sooner than seven days after the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017).
Any further hearing of this proceeding be adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an application for review of a decision not to revoke the cancellation of the applicant's Class BS Subclass 801 Partner (Migrant) visa (partner visa). 2 The applicant's partner visa was cancelled on 10 March 2016 by a delegate of the respondent Minister (Minister) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act), on the basis that the applicant did not pass the character test since he had been convicted of sexually based offences involving children, within the meaning of s 501(6)(e) of the Migration Act. The decision not to revoke the cancellation decision was made by the Minister, acting personally, on 13 February 2017. 3 The applicant, by an amended originating application filed on 28 July 2017, seeks an order that the decision of the Minister be quashed, and an injunction restraining the Minister from removing the applicant from Australia pending the outcome of these proceedings. On 17 March 2017 the applicant filed an affidavit in support of his application.

Background 4 The applicant is a citizen of the People's Republic of China. He married his wife, who is an Australian citizen, on 10 May 2005. He was granted a permanent spouse visa on 5 October 2007. The applicant and his wife have two children from their relationship, and the applicant's wife has two daughters from a previous relationship. 5 In 2015 the applicant pleaded guilty to six sexual offences committed against his two stepdaughters between 2005 and 2014. On 15 June 2015, the County Court of Victoria imposed a total effective sentence of imprisonment of nine months, with a Community Corrections Order of three years. The sentencing judge had before her a report of Mr Cummins, forensic psychologist, and a report of Mr Drake, senior clinical psychologist. In dealing with these reports, the sentencing judge said: Mr Cummins provided a report in this matter, having seen you on 14 January 2015 []. You initially told him that you did not know why you offended against the victims, but when questioned further you admitted you received sexual gratification from committing the offences. Mr Cummins performed some formal assessments on you, one of which put your risk of sexual reoffending at zero. Mr Cummins said that he thought this test underestimated the risk. After considering the results of another test that he administered, Mr Cummins was of the view that you presented a low-moderate risk of re-offending. Mr Cummins said that you had a specific sexual problem in terms of being sexually attracted to your stepdaughters. This much seemed to be evident from your offending, I would have thought. You and your wife told Mr Cummins that you had a healthy sexual relationship with one another, which you said was the case at the time you committed the offences. Mr Cummins observed that because of your poor command of English any offence specific treatment would have to involve a Mandarin speaking psychologist, which would not be available in any standard group based program. Mr Cummins did not find that you had any mental health or psychological difficulties which might help explain your offending. I sought further assistance in terms of diagnosis and perhaps motivations for offending through Forensicare and have now received a report from a Chris Drake, Senior Clinical Psychologist, dated 5 June 2015. That report says that you do not have any mental illness or psychological issues which might help explain your offending. Mr Drake said that even though you experienced a satisfactory sexual relationship with your wife during the period of offending, that this appeared to be insufficient, leading you to seek out other sources of sexual activity, being your stepdaughters. He said that you fell within a group which had a low recidivism rate when compared with other offender groups. He said that your risk was even lower because you had no criminal history and you only offended against family members. Subsequently, he said that in view of your wish to return home where your own children were, your risk of recidivism would increase to moderate. However, he also said that your appreciation of the negative impacts of your offending would be a protective factor. In short, you had a deviant sexual arousal in respect of your stepchildren, notwithstanding that you had a normal sex life with your wife. Rather than seek sexual gratification with other adult females, you turned to your stepdaughters. 6 While the applicant was serving his sentence, he was notified by a letter from the Department of Immigration and Border Protection that his visa had been cancelled under s 501(3A) of the Migration Act. 7 On 7 April 2016 the applicant, through his migration adviser, made representations under s 501CA(4)(a) for the cancellation decision to be revoked. The applicant accepted that he did not pass the character test within the meaning of s 501(3A) and as defined in s 501(6). The applicant also accepted, therefore, that the only basis on which he could succeed in setting aside the cancellation decision was to satisfy the Minister that there was "another reason why the original decision should be revoked": see s 501CA(4)(b)(ii). 8 In support of his application for revocation of the cancellation decision, the applicant provided the submissions prepared by his migration agent, his own written statement, a certificate of completion of the Release Related Harm Reduction Program, statutory declarations signed by his wife and two stepdaughters, a report of Ms Amanda Wallis (a clinical psychologist), a letter from Dr Anthony Chan (the family's treating doctor), a report by Dr Michael King (a clinical psychologist) and a bundle of other documents. 9 In a summary of his opinion, Dr King stated in his report that: It is my opinion based upon extensive psychometric assessment and investigation that under the circumstances outlines [sic] above (that is provided with an intensive period of treatment), this man does not pose a risk of reoffending. 10 Dr King subsequently stated in the same report that: In summary, it is my opinion that this man does not display the pathological condition that leads to repeated child sex offending; he does have a significant problem which stems from very restricted social development leading to a treatable, but well entrenched psychological problem which has in turn led to extremely serious offending. He needs treatment, and anticipating the provision of that treatment he does not pose a risk of reoffending. … My clinic stands ready to assist in this progress and agreement to uptake treatment at the clinic has been established. 11 Further submissions were made on the applicant's behalf on 20 October 2016, enclosing another letter from Dr Chan, a further report by Ms Wallis, certain medical records, and a letter from the applicant's accountant about the applicant's business.

The Minister's decision 12 On 13 February 2017, the Minister decided not to revoke the original decision to cancel the applicant's partner visa. 13 The Minister accepted that the applicant had made representations as required by s 501CA(4)(a) of the Migration Act. The Minister was satisfied that, as the applicant in fact accepted, the applicant did not pass the character test for the purposes of s 501CA(4)(b)(i); and that whether or not the Minister would decide to revoke the visa cancellation decision would be determined by reference to whether the Minister was satisfied that there was "another reason why the original decision should be revoked" for the purposes of s 501CA(4)(b)(ii). 14 The Minister considered the best interests of the applicant's four minor children, the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, the impact on Australian business interests, the impact on victims, the extent of impediments that the applicant would face if removed, and the protection of the Australian community. In considering the protection of the Australian community, the Minister considered the applicant's criminal conduct, and the risk the applicant posed to the Australian community. It is the latter aspect of the Minister's reasons that is the focus of this appeal. 15 In assessing the risk the applicant posed to the Australian community, the Minister had regard to the sentencing judge's account of the reports of Mr Cummins and Mr Drake, as well as the report of Dr King. The Minister observed that the medical opinions differed, and "given the significant discrepancy between the ages of the girl identified as the foundation of the repression and of [the] step-daughters when the applicant first offended against them", he was "unable to accept a specific casual factor" in the applicant's offending. The Minister noted that "both Mr Cummins and Dr King assessed that specific treatment would lower [the applicant's] risk of recidivism and I accept those findings". 16 The Minister noted Mr Cummins' overall assessment that the applicant presented a "low-moderate risk of re-offending". The Minister noted Mr Drake's opinion that the applicant "fell within a group which had a low recidivism rate" and that his risk was lower still because he had no criminal history and only offended against family members. At the same time, the Minister noted Mr Drake's opinion that because the applicant wished to return to his family, his risk of recidivism would increase to moderate, although the applicant's "appreciation of the negative impacts of his offending would be a protective factor". 17 The Minister also had regard to the sentencing judge's remarks, which referred to the applicant's repeated wrongdoing notwithstanding his awareness of "the wrongfulness of [his] actions after each episode of offending" and her Honour's statement that this gave her "some cause for concern, especially seeing you wish to re-engage with your family". 18 The Minister referred to the applicant's representative's statement that Dr King had assessed the applicant's risk of re-offending as "non-existent", but the Minister noted that Dr King's summary of findings and opinion was predicated on the applicant undergoing treatment "for the significant problem diagnosed by Dr King". 19 In relation to treatment, the Minister noted the comments of Mr Cummins that the applicant would require specific treatment which involved a Mandarin speaking psychologist and this would not be found in any standard group based program. The Minister also noted Dr King's representation that the applicant had agreed to undertake treatment at his clinic, but accepted that the applicant would not be able to access "the specific treatment required" because he had been "in the prison or detention environment since sentencing". Therefore, the Minister stated that: [76] While I accept that [the applicant] has agreed to undergo treatment with Dr King, I find that as [the applicant] has not been able to engage in appropriate treatment at this time and intends to return to the family home if his visa cancellation decision is revoked, there remains a likelihood of his re-offending. ... [86] I have taken into account the support from [the applicant's] family, his business, remorse, insight and the professional opinions of Mr Cummins, Mr Drake and Dr King. I accept the opinions of Mr Cummins, Mr Drake and Dr King that [the applicant] is a low risk of re-offending and requires treatment [to] lower that risk even further. I find that as [the applicant] has not yet engaged in treatment there is [an] ongoing likelihood, albeit low, that [the applicant] will re-offend. I find that should [the applicant] re-offend it may result in psychological harm to members of the Australian community. 20 The Minister expressed his ultimate conclusion on the application as follows: [95] In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, and familial [ties] to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked. Given the nature of [the applicant]'s offending and the possible harm should he reoffend, even a low likelihood of reoffending is unacceptable. 21 Having concluded that he was not satisfied that there was "another reason why the original decision should be revoked", the Minister decided not to revoke the original decision to cancel the applicant's partner visa.

Statutory Framework 22 Section 501(3A) of the Migration Act provides for mandatory cancellation of a visa in certain circumstances where a person does not pass the character test. That subsection reads: (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 23 When a person's visa has been cancelled, s 501CA provides for a process to seek revocation of the decision: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (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. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

parties' submissions 24 The applicant's amended originating application contained three grounds. Under ground 1, the applicant contended that the Minister had misunderstood or misapplied the statutory task when assessing the question of the applicant's risk to the Australian community. In particulars to this ground, the applicant asserted that: (a) The Respondent considered the most recent evidence on risk, as he was bound to, namely the report of Dr King, psychologist, dated 23 March 2016. (b) The Respondent noted that Dr King said that there was no risk of re-offending, provided the applicant underwent an intensive period of treatment with him. (c) The respondent accepted that the Applicant had agreed to undergo treatment with Dr King. (d) Contrary to the finding in [86] of the decision, Dr King did not provide an opinion on the level of risk if the Applicant were released into the community prior to commencing the required treatment with him. (e) There was no basis for the Respondent to conclude that if the applicant was released into the community prior to commencing the required treatment, that there was a likelihood that he would re-offend. 25 In oral submissions at the hearing, counsel for the applicant submitted that both grounds 1 and 2 "revolve[d] very much around the provision of a psychologist's report from a Dr King and how the Minister dealt with that report". 26 In written submissions, the applicant also submitted that: The Minister incorrectly noted in [68] that both Mr Cummins and Dr King assessed that specific treatment would lower the applicant's risk of recidivism. Mr Cummins did not make any reference to the impact of treatment upon risk, rather, he noted that because of language difficulties, the applicant would require a Mandarin speaking alternative... Equally, Dr King did not make any reference to treatment lowering the risk of recidivism. Rather ... he said that with treatment there was no risk of re-offending. The applicant added that "there was no evidence before the Minister regarding the level of risk if the applicant were to be released into the community prior to having commenced treatment with Dr King". He further submitted that the question had neither been addressed by the sentencing judge nor the psychologists reporting to her. 27 Counsel for the applicant submitted at the hearing that Mr Cummins did not say anything in relation to the risk of re-offending being lowered by treatment. Nor did Mr Drake or Dr King say anything about the risk being lowered by treatment. Counsel submitted that all the Dr King reported was a zero risk of re-offending if the applicant was treated by him. Counsel submitted that: [T]he real question which was glossed over ... was that each of the psychologists had the same view about something, whereas in fact they didn't. And so what that left unanswered was the case that the applicant was putting - was that if he were released, along with the conditions of the community corrections order and the sex offender register order, the treatment with Dr King would reduce his risk to zero. So the - what has happened, it's submitted, is that the Minister has stopped short of answering the question which was posed by the material. ... The question which was raised was - by the most recent report, was that, with treatment, the risk that the applicant posed to the community was zero, or there was no risk, and so the question that that raised was if he were released and were undergoing that treatment or about to undergo that treatment or was pursuing that treatment - all of which was suggested that he wanted to do with Dr King - would the risk during that relevant period be one which was unacceptable? And that question wasn't answered because of the way in which the Minister glossed over what the information was telling him. 28 Counsel for the applicant submitted that this was not a minor factual error. Rather, it was "an error that was part of a chain of reasoning that led the Minister to conclude that there was an ongoing likelihood" of offending again. There was therefore, so the applicant said, jurisdictional error in the Minister's decision because he failed to carry out the statutory task. 29 The Minister accepted that Mr Cummins did not expressly state that specific treatment would lower the applicant's risk of recidivism and to the extent the Minister's statement of reasons, especially at [68], indicated that Mr Cummins did state this, the statement was in error. The Minister contended, however, that the error was not "significant to the decision reached". The Minister stated in written submissions that: It is implicit in Dr King's opinion that, without treatment, the Applicant would pose a risk to the Australian community. It was open for the Minister to make an inference to this effect in reliance on Dr King's report. In any event, Mr Cummins clearly stated that the Applicant presented a low-moderate risk of reoffending, and provided this opinion without qualification or reference to the provision of any treatment. Mr Drake also said that the Applicant fell within a group that had a low recidivism rate. Once again, this opinion was expressed without reference to any treatment. It was accordingly open to the Minister to infer, on this basis also, that the Applicant posed a risk to the community in the absence of treatment from Dr King. On this basis the Minister contended that there was ample evidence to find that the applicant posed a risk of harm to the Australian community in the absence of him receiving treatment. 30 At the hearing, counsel for the Minister submitted that the essential question under grounds 1 and 2 was whether or not the "material reasonably admit[ted] of the conclusions that the Minister ultimately arrived at", citing Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [28] and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 at [25]. Counsel for the Minister emphasised that Dr King's opinion that the applicant would not pose a risk was expressly predicated on the assumption that he would be receiving treatment of some kind. Counsel for the Minister affirmed that the Minister had not misconstrued Dr King's report. 31 Under ground 2, the applicant contended that the Minister had misunderstood or misapplied the statutory task when assessing the question of the applicant's risk to the Australian community by reference to the following particulars: (a) Throughout the decision, the Respondent used the terms risk and likelihood as if they were the same; (b) The Respondent erred in eliding the assessment of risk of re-offending with a different question, being the likelihood of re-offending. 32 In this connection, the applicant noted that the Minister referred to "risk" at [65] and [70]-[74] and "likelihood" at [76]. The applicant submitted that "[t]he switch from risk to likelihood" also appeared at [86] and [95]. The applicant contended that "it is one thing to assess the risk of reoffending, but another to assess the likelihood of reoffending", because "[a] risk of something occurring does not mean that there is a likelihood, in the sense of probability, that it will occur"; and "[i]n the result, the Minister, having decided to consider the issue of revocation in terms of the likelihood of re-offending, impermissibly equated risk with likelihood". 33 At the hearing, counsel for the applicant submitted: [A]lthough the Minister is not required to embark upon an evaluation of the likelihood, when the Minister does, then it's submitted the Minister must go about that task correctly. So that unless the Minister shows in the reasons an appreciation of the difference between risk and likelihood and because those words do have different meanings, then it's submitted that they can't be used interchangeably. … [T]he applicant's short submission ... is when one looks at the process, ... what the Minister has done is looked at what the experts say in relation to risk, set it [out] incorrectly as referred to in ground 1, but then jumps immediately to the question of likelihood without any foundation for that, or without any analysis as to why something moves from a risk to a likelihood. So it's submitted that that's apparent in the way in which the Minister has mixed the terms and used them effectively as if he was assessing the same thing. 34 The Minister responded by submitting that "using the words risk and likelihood interchangeably does not lead to the conclusion that the decision maker has failed to apply the question posed by s 501CA(4)(b)(ii) of the Act" (italics original). Referring to Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 (Tanielu) and Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 (Moana), the Minister submitted that likelihood is a constituent element of risk and that the likelihood of the applicant's re-offending was of "central relevance to the issue of the risk of him reoffending". The Minister concluded with the observation that the applicant's focus on [76] of the Minister's statement of reasons, "where the Minister refers to likelihood, overlooks the statement in paragraph [95], under the heading of conclusion, where the Minister speaks in terms of risk of harm to the Australian community", which was consistent with Tanielu and Moana (emphasis original). 35 In oral submissions at the hearing, counsel for the Minister said that he was "not saying that when the Minister considers risk of harm the Minister must, necessarily, consider likelihood in all circumstances. It is, in this instance, not, however, an error ... to have considered likelihood". Counsel submitted that "in the context here of the Minister's reasons, the way the Minister has dealt with questions of likelihood and risk, it is clear ... that the Minister has properly considered the question". That is, so counsel for the Minister submitted, the Minister recognised that the relevant question for him to determine was whether the applicant posed an unacceptable risk, and the Minister considered likelihood in that context. 36 In a third ground, the applicant alleged that: The decision of the Respondent was invalid because s 501(3A) of the Migration Act 1958 (Cth), on which it depended, was itself invalid as purporting to confer judicial power on the respondent Minister, contrary to Ch III of the Constitution 37 This ground (Falzon ground) raised an issue falling for determination in proceedings brought in the original jurisdiction of the High Court, challenging the constitutional validity of s 501(3A) of the Migration Act: see Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017). Judgment in that matter is currently reserved. The parties in this proceeding agreed that the consideration of ground 3 should be deferred until after the High Court delivers judgment.

Consideration 38 As noted above, it was not said in this case that it would have been open to the Minister to have been satisfied that the applicant passed the character test (as defined in s 501) and, for this reason, to have revoked the visa cancellation decision: see s 501CA(4)(b)(i). Where, however, a visa cancellation decision has been made, as in this case, under s 501(3A), the Minister may revoke the visa cancellation decision if the Minister is satisfied that there is another reason why that decision should be revoked: see s 501CA(4)(b)(ii). The applicant sought revocation of the visa cancellation decision made against him on this latter basis. 39 For the reasons set out below, I am not persuaded that there was any relevant error in the Minister's decision that he was not satisfied that there was another reason to revoke the visa cancellation decision against the applicant. 40 If there was error in the Minister's statement at [68] of his reasons that both Mr Cummins and Dr King assessed that "specific treatment would lower" the applicant's risk of recidivism, then the error was insignificant in the decision-making. The Minister correctly accepted that the judge's sentencing remarks, from which the Minister ascertained the contents of Mr Cummins' report, did not show that Mr Cummins made any express statement to that effect. Given, however, that Mr Cummins was reported as stating expressly that the applicant presented "a low-moderate risk of re-offending" and as addressing the issue of treatment, there was a logical and probative basis for the Minister to infer, as he did, that Mr Cummins considered that the applicant was in need of treatment (see [75] of the Minister's statement of reasons) and that the purposes of such treatment included reducing the risk of recidivism (compare [68] of the Minister's statement of reasons): Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 at [63]-[65]. If there was any error in [68] of the Minister's statement of reasons, it was very minor indeed and does not support a finding of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [89]. 41 Furthermore, the Minister's statement of reasons does not, in my view, justify the conclusion that the Minister misunderstood Dr King's report. The Minister acknowledged in his statement that "Dr King's summary of findings and opinion states that [the applicant] does not pose a risk of re-offending is predicated on [the applicant] undergoing treatment for the significant problem diagnosed by Dr King" (at [74]; compare [11] of the statement of reasons). In this context, the critical difficulty for the applicant was that he had not been able to engage in appropriate treatment and, so the Minister observed, "intends to return to the family home if his visa cancellation decision is revoked": see [76] of the statement of reasons. At this point, an issue for the Minister was the assessment of the risk of the applicant's re-offending on re-entering the community in the absence of treatment. With respect to this issue, the Minister had regard to all three expert opinions of Mr Cummins, Mr Drake and Dr King: see [86] of the statement of reasons. Although Dr King did not expressly state that the provision of specific treatment would lower the risk of the applicant's re-offending, the report presented by Dr King provided a rational basis for the Minister to infer that without that treatment there was a risk that the applicant would re-offend. Dr King's stated view was that the applicant needed treatment, that he did not pose a risk of re-offending if provided with "an intensive period of treatment", and "anticipating the provision of that treatment he does not pose a risk of reoffending": see [10]-[11] above. It is clear that Dr King's opinion that the applicant did not pose a risk of re-offending depended on the provision of specific treatment. It was clearly open to the Minister to infer from Dr King's report that without that treatment he was at risk of re-offending. The Minister's description of this as a 'low' risk was borne out by the sentencing judge's account of the opinions of Mr Cummins to which I have just referred and of Mr Drake (see [6] above) and did not amount to an erroneous understanding of the unstated effect of Dr King's report. There was, plainly enough, a rational and probative basis for the Minister's conclusion that the applicant was "a low risk of re-offending and requires treatment [to] lower that risk even further". This is not a case of jurisdictional error. 42 Furthermore, in relation to ground 2, it is not said by the applicant that the Minister erred in considering whether his continued presence in Australia created a risk of harm to the Australian community; and the further question, whether the Minister was bound to consider such a risk in making a decision under s 501CA(4) of the Migration Act, does not arise because he did so. The only question raised by ground 2 is whether the Minister impermissibly equated the risk of harm with the likelihood of re-offending and thereby failed to address the statutory question. 43 I would not in this case impute any such error to the Minister. The likelihood of a person engaging in conduct that may harm the community has been said to be a matter that may (perhaps sometimes must) bear on an assessment of the risk of harm to the community occasioned by the visa holder's continued presence: see Moana at [74] per Rangiah J (North J agreeing at [1]); compare Tanielu at [104] per Mortimer J. It is accepted that the likelihood that a person may re-offend and thereby harm the community may properly be seen as an element of the assessment of the risk that that person poses to the Australian community. There was therefore no error on the Minister's part in considering the likelihood of the applicant's re-offending as part of assessing the risk he posed to the community. 44 Reading the Minister's statement of reasons fairly and as a whole, it does not seem to me that the Minister has relevantly erred in confusing the matters of likelihood and risk, as the applicant alleged. Under the heading "Risk to the Australian community" the Minister considered the expert opinions about the applicant and, in particular, whether there was a specific casual factor in the applicant's offending ([66]-[68]), as well as the experts' assessments. Whilst the possibility of the alleged error is raised by the Minister's references to "the assessment of risk provided by Mr Cummins and Mr Drake" ([70]), to one of Mr Cummins' assessments that put the applicant at "zero risk of re-offending" ([71]) and to Dr King's statement that the applicant "does not pose a risk of re-offending" ([74]), as will be seen, this possibility arises only in connection with the Minister's descriptions of the expert's opinions. The possibility is removed, as a practical matter, by the terms of the Minister's penultimate finding (at [76]) that "there remains a likelihood of [the applicant's] reoffending" and ultimate findings (at [95]) that the applicant represents "an unacceptable risk of harm to the Australian community" and that "[g]iven the nature of [his] offending and the possible harm should he reoffend, even a low likelihood of reoffending is unacceptable". The findings in these two latter paragraphs make it clear that the Minister was considering the question of likelihood of re-offending in the context of the risk of harm to the Australian community posed by the applicant's continued presence in Australia. Ground 2 must fail as not disclosing jurisdictional error.

Disposition 45 For the reasons stated, grounds 1 and 2 of the applicant's application for judicial review, as amended, are rejected. This leaves remaining ground 3. I would order that ground 3 of that application be stood over for mention on a date to be fixed, not sooner than seven days after the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017); and that any further hearing of this proceeding be adjourned to a date to be fixed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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