HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2019-10-21|Before: Abraham J

The application for review be allowed and the decision of the Administrative Appeals Tribunal dated 21 October 2019 be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
The first respondent to pay the applicant's costs of the application to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The applicant, who is a citizen of Sierra Leone, moved to Australia on 2 February 2011 as the holder of a partner visa. On 13 December 2017, he was granted a resident return visa. On 2 August 2018, the Department issued the applicant with a notice that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act), on two separate bases, namely that he failed to pass the character test in the Migration Act as he had been convicted of one or more sexual offences against a child: s 501(6)(e)(i), and because, he had a substantial criminal record as a result of having been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more: s 501(7)(d). At the time of the cancellation, the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution and as such was subject to mandatory cancellation: s 501(3A)(a)(ii) and s 501(3A)(b). 2 The applicant sought revocation of the cancellation. On 26 July 2019, the delegate decided not to revoke the mandatory cancellation: s 501CA(4) of the Migration Act. On 21 October 2019, the Administrative Appeals Tribunal (the Tribunal) affirmed the delegate's decision. 3 This is an application for judicial review of the Tribunal's decision, with three grounds being relied on: (1) the Tribunal erred in finding that the applicant did not pass the character test under s 501(6)(e)(i) of the Migration Act; (2) the Tribunal made a critical finding of fact that was unsupported by the evidence and failed to take into account evidence and submissions provided by the applicant such that the decision is seriously lacking a foundation, rationality, and logical coherence in a way that was legally unreasonable, which related to the finding as to the absence of any objective basis for the applicant's subjectively held fear of returning to his country of nationality, Sierra Leone; and (3) the Tribunal erred by failing to consider as a primary consideration all the claims advanced on behalf of the applicant's child. 4 For the reasons set out below the application for review is allowed.

Factual Background 5 The applicant is a 45 year old citizen of Sierra Leone who, from 2004 to 2010, was employed as a programme assistant and deputy sector coordinator with the United Nations, serving in operations in Sierra Leone, Sudan and the Philippines. The applicant met his wife in 2006 when she was working as a child protection specialist for UNICEF in Sudan, and they were married in August 2008 in Khartoum. In 2009 they moved to the Philippines where they both worked for the United Nations and, on 17 November 2010 they had a daughter, "ML". In 2011 they moved to Australia and lived in Victoria. The applicant has since been diagnosed with a number of mental health conditions, including bipolar and PTSD, the latter arising from sexual and physical violence experienced as a young child, and from his experiences in various war zones growing up and as part of his work with the United Nations. 6 As noted above, on 2 August 2018 the applicant's visa was cancelled by a delegate of the respondent under s 501(3A). 7 The applicant has been convicted of a number of offences, most relevantly, in the Tasmanian Supreme Court in 2012, in Victoria in 2016 and in New South Wales in 2018. In relation to the Tasmanian offences, the applicant pleaded guilty to one charge of indecent assault and was also dealt with on a plea of guilty to one charge of assault with indecent intent, pursuant to s 385A of the Criminal Code Act 1924 (Tas), and was sentenced to 6 months imprisonment. In relation to the Victorian convictions the applicant initially pleaded not guilty, however following a request for an indication with respect to potential penalty, the applicant relevantly pleaded guilty to two offences of indecent assault and was sentenced to an aggregate sentence of 70 days imprisonment. In August 2018 the applicant was sentenced in the Local Court in New South Wales to two, wholly concurrent, periods of imprisonment of 3 months and 19 days for driving a motor vehicle during a disqualification period. These offences appear to breach an 8 month Intensive Correction Order imposed in relation to previous driving offences. It was the driving offences, combined with the sentences of imprisonment for the Tasmanian and Victorian offences, that resulted in the applicant failing the character test on the basis of s 501(7)(d). 8 In relation to the application for revocation the applicant made detailed submissions and provided evidence, in particular, but not limited to, medical reports in relation to the applicant, evidence from the applicant and his wife and evidence directed to the issue of the best interests of the child, ML.

Tribunal decision 9 This summary only provides an overview of the reasons, with a more detailed consideration of some aspects of the reasons set out in the consideration of the applicant's grounds for review. 10 The Tribunal at the outset referred to the applicant's concession that he did not pass the character test by reason of his "substantial criminal record", under s 501(7)(d) of the Migration Act and noted that it accepted that the applicant could not rely on s 501CA(4)(b)(i) for the cancellation to be revoked. 11 The issue then addressed was whether there was another reason to revoke the cancellation of the applicant's visa, which required the Tribunal to consider Direction 79. The structure of the Tribunal's reasons was that in relation to each of the considerations listed therein, it recited the evidence and submissions and then identified the conclusions reached. 12 In relation to Primary Consideration A: the protection of the community, the Tribunal first considered the nature and seriousness of the applicant's conduct. The Tribunal set out the details of the applicant's convictions, and thereafter considered in more detail the Tasmanian offences in 2012, the Victorian indecent assault offences in 2016, and numerous driving and other offences, including the 2018 NSW driving offences which resulted in the applicant failing the character test on the basis of s 501(7)(d). 13 As to the Tasmanian offences, after reciting aspects of the sentencing remarks of the Tasmanian Supreme Court, the underlying evidence before the Tribunal as to the offences and the applicant's evidence before the Tribunal on this topic, the Tribunal made a number of findings. The applicant gave evidence that he had always maintained that the allegations were untrue and that he had pleaded guilty because of negligent legal advice. The Tribunal rejected the applicant's submission that it must be satisfied that each of the Tasmanian complainants was a child. As to the Victorian offences, the Tribunal undertook the same process. The applicant also denied this offence. The Tribunal did not accept the applicant's denials of indecent behaviour in relation to either the Tasmanian offences or the Victorian offences. 14 In relation to the risk to the Australian community should the applicant reoffend, the Tribunal detailed the various mental health reports relied on by the applicant. Thereafter, the Tribunal addressed the applicant's submission in relation to the Tasmanian convictions that he had not been charged with or convicted of an act involving a child, and that this was relevant to the seriousness of his offences. This was rejected by the Tribunal. The Tribunal was satisfied, in any event, that the complainants were sixteen years old. The Tribunal concluded the Tasmanian offences were serious sexual offences which in relation to the second complainant, involved violence and intimidation which is a further aggravating feature of the applicant's serious misconduct. The Tribunal also concluded that the Victorian offences were very serious involving the use of drugs and indecent acts. The Tribunal found that the fact that the applicant now denies any acts of indecency, which conflicts with the agreed facts before the two sentencing courts, demonstrates an absence of contrition and remorse. 15 The Tribunal concluded at [132]: The Applicant's evidence before the Tribunal as it related to his sexual offending lacked both credit and reliability. He may have been affected by drugs and alcohol at the time of his offending, but that does not explain his now denial of sexual misconduct involving two youths and two young gentlemen. The learned judge's sentencing remarks detail the impact the Applicant's offending had on the second youth who was described as vulnerable. The Applicant's conduct had a profound and adverse impact on that youth. This reinforces the Tribunal's obligation to view the seriousness of the crime in accordance with paragraphs 13.1.1(1)(a) - (c). The Tribunal regards the offending in Tasmania against both youths as very serious. Similarly, the offending against the young gentlemen in Victoria is serious and this offending weighs heavily against the Applicant. 16 The Tribunal accepted the applicant's difficult upbringing and that his mental health had been adversely affected by the events of the civil war in Sierra Leone and the diagnosis of various medical and mental health practitioners, which, it accepted with its relationship to his drug abuse, as relevant when considering the risk of reoffending. However, it found that the applicant continued to take drugs and offend, with his first offence having occurred only 6 months after arriving in Australia. The Tribunal found his evidence about his drug use was an effort to minimise his culpability and responsibility, noting that he was not frank with his medical practitioners when detailing his drug use and criminal history. The Tribunal concluded that if the applicant were to reoffend, the harm to others would be physically and psychologically substantial and very serious. Further the Tribunal found that the applicant remained a significant risk of reoffending, and that the protection of the community weighed heavily against the applicant. 17 In relation to Primary Consideration B, the best interests of the minor child, the Tribunal accepted the evidence of the applicant's wife that the applicant is a loving and caring parent with a strong bond with his child, but found that since arriving in Australia, his ability to care for his child had been impacted by his drug use, separation from his wife and child when living in Newcastle, and his periods in prison and detention. The Tribunal accepted that since May 2016 the applicant's wife had been the primary caregiver and that his child suffered from learning and other difficulties as outlined in a psychological report. It also took into account the lasting impact that separation from a parent might have on a child's development. The Tribunal also noted that the applicant's wife is often required to travel overseas for work and that it is preferable for the applicant to be available to perform a parenting role rather than relying on family or friends. The Tribunal concluded that it was in the best interests of the applicant's child that the cancellation be revoked however, noting the limited parental care provided by the applicant since May 2016, the Tribunal placed medium weight in favour of the applicant. 18 In relation to the Primary Consideration C, the expectations of the Australian community, the Tribunal concluded, having regard to the evidence in relation to the applicant's serious criminal offending, together with his personal circumstances including risk of future offending, that the Australian community's expectations in respect of the applicant would endorse a finding of non-revocation of the mandatory cancellation of his visa. The Tribunal found that this consideration weighed heavily in favour of non-revocation. 19 The Tribunal then addressed the other considerations. With respect to Australia's international non-refoulement obligations the Tribunal observed that no evidence was advanced that was relevant to this consideration, and so it was given neutral weight. As to the applicant's ties to Australia, the Tribunal accepted that if the applicant were to remain in Australia, he would contribute to the parental care of his daughter, which had been very limited since 2016. The Tribunal also accepted that the applicant's family would suffer emotional and financial impact if he were removed and his child would lose the opportunity to learn and develop her African culture. The Tribunal gave medium weight in favour of the applicant. 20 As to the impediments faced by the applicant if removed, the Tribunal noted the parties' submissions. The Tribunal, while it noted that there was no evidence before it with respect to medical support that would be available to him in Sierra Leone, accepted that it would not be to the same standard as in Australia. The Tribunal found there would be no substantial language or cultural barriers given the applicant had spent most of his life in Sierra Leone, and his mother, brother and eldest daughter also reside there. The Tribunal noted that the applicant had been employed in a range of industries in Australia and had extensive experience in humanitarian work. The Tribunal found it likely that he had capacity to gain employment if returned to Sierra Leone. The Tribunal noted that the applicant expressed a number of concerns should he be returned but he submitted they did not enliven the non-refoulement obligation. The Tribunal noted that the applicant expressed fear and concern for his own safety should he be returned to Sierra Leone inter alia, given his antecedent history, and his concern that a media article about his offending would become known to the authorities in Sierra Leone, combined with penalties for sexual offending in Sierra Leone and the discrimination experienced by people to whom homosexuality is imputed. The Tribunal concluded that in the absence "of any acceptable evidence that there is a rightly held basis of fear and that the impediment does exist" the Tribunal did not accept this factor will be an impediment. The Tribunal gave this consideration slight weight in favour of the applicant. 21 The Tribunal found that the protection of the Australian community and its expectations outweigh the other factors relevant to its decision, and accordingly it affirmed the delegate's decision not to revoke the cancellation of the applicant's visa.

Submissions 22 The applicant submitted that his 2012 convictions in the Tasmanian Supreme Court do not fit within s 501(6)(e)(i) of the Migration Act, as that is only engaged if a person is convicted of "one or more sexually based offences involving a child". 23 The applicant submitted that he had denied that he had indecently assaulted the Tasmanian complainants and had only pleaded guilty on the erroneous advice of his solicitor. He conceded the fact of the convictions before the Tribunal but said that he had believed that the complainants were in their "early to mid-twenties". Although the applicant accepted that the Tribunal could not go behind the factual matters "essential to the conviction" with respect to a s 501 cancellation and could not impugn the facts behind any sentence upon which the power to cancel a visa is based, he contended that the age of the Tasmanian complainants was not essential to the conviction of the applicant. 24 The applicant challenged the Tribunal's findings at [43], that in denying knowledge of the youth of the complainants the applicant was inviting the Tribunal "to engage in an enquiry that would impugn the essential facts found by the learned sentencing judge"; that the finding of fact that each complainant was aged 16 years at the time of the offending "must be accepted by the Tribunal" and that the applicant was convicted of "sexually based offences each involving a child", with reference to s 501(6)(e) of the Migration Act. 25 The applicant submitted that although the sentencing judge took into account that the complainants were sixteen years old, this finding of fact was not essential to the conviction of the applicant, nor was it essential to the power to cancel the applicant's visa under s 501(3A), s 501CA(4), and s 501(6)(a) and (7)(c). The applicant relied on Minister for Immigration v Ali [2000] FCA 1385; (2000) 106 FCR 313 and the observations of Branson J at [43] that the sentencing judge's findings as to the ages of the complainants was "strong prima facie evidence" of those facts so as to throw a heavy onus on the applicant when he sought to challenge them to show why they should not be accepted. It was submitted however, that the applicant was entitled to challenge those facts and that onus would more easily be satisfied where the conviction and sentence followed a plea of guilty. The applicant submitted that applied even more so here where the applicant had consistently denied any knowledge of the youth of the complainants. It was submitted that the recent decision of the Full Federal Court in HZCP v Minister for Immigration [2019] FCAFC 202 at [71]-[73] and [191] is consistent with that approach. 26 The respondent accepted that it was not a necessary element of the offending that the complainants were minors, but that did not mean that the Tribunal was permitted to "go behind" findings upon which the conviction and sentence were based. The respondent contended that the principle, which was correctly accepted by the applicant, that the Tribunal cannot impugn the facts behind any sentence upon which the power to cancel a visa is based, means that this ground necessarily fails. The respondent submitted that once it was accepted that the Tasmanian convictions formed a basis for the exercise of power, that is, a finding that the applicant failed the character test, then it followed that the findings made in respect of those convictions could not be challenged by the applicant to demonstrate "another reason" to revoke the cancellation decision: HZCP at [76]-[77] and [194]-[195]. 27 The respondent submitted that in any event, even if the applicant's arguments in respect of ground one are otherwise successful, no jurisdictional error is established because any error was not material in the sense that it made no difference to the Tribunal's ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]-[31] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44]-[45]. It was submitted this was because (1) to the extent the Tribunal relied on the Tasmanian convictions to find that the applicant failed the character test on the basis of a conviction of a sexually based offence involving a child, there was a separate and independent basis for this conclusion (which was conceded by the applicant) based on his "substantial criminal record": s 501(7) of the Migration Act and; (2) to the extent the Tribunal relied on the Tasmanian convictions to determine whether there was "another reason" to revoke the cancellation decision, the Tribunal made an alternative finding (in the event that it was wrong to find that it could not go behind the findings of the sentencing judge) to the effect that the finding of the learned sentencing judge was correct to find that the victims were minors.

Consideration 28 It is necessary to commence by referring to what the Tribunal concluded in this regard, for although the applicant impugns paragraph [43] of the reasons recited below; that is not the full extent of the conclusions on this topic. 29 At [43], when considering whether the character test was passed, the Tribunal stated: The Tribunal rejects the Applicant's submission that the Tribunal must be satisfied that each complainant was a child. Albeit the documents referred to in paragraph 40 above are evidence capable of proving the complainants' ages and does satisfy the Tribunal that each complainant was aged 16 years at the time of the offending, this submission is nonetheless fundamentally misconceived. The submission invites the Tribunal to engage in an enquiry that would impugn the essential facts found by the learned sentencing judge in the course of his deliberations concerning sentence and upon which the sentence was based. Those findings of fact include that each victim was aged 16 years at the time of the offending and this must be accepted by the Tribunal, which the Tribunal accepts. The Tribunal finds the Applicant was convicted of sexually based offences each involving a child. 30 Later, under the heading of conclusion, Primary Consideration A, the Tribunal concluded at [126]-[128], that: The Tribunal rejects the Applicant's submission that there is insufficient evidence for the Tribunal to be satisfied that the Applicant was convicted of a sexually based offence involving a child. There was ample evidence which identified the ages of the complainants in the Tasmanian offending to which the Tribunal has referred above. The learned sentencing judge in his sentencing remarks referred to both youths being 16 years of age. This was consistent with the material that was before him. The ages of the victims were an essential fact upon which the sentence was based. The Tribunal accepts the findings of fact contained within the sentencing remarks of His Honour Justice Evans in the Supreme Court of Tasmania, the agreed summary of facts before Magistrate Ayres in the Melbourne Magistrates Court, and as contained within the transcript of proceedings. The Tribunal agrees with the Respondent's submission about the role of the Tribunal. In Minister for Immigration & Multicultural Affairs v SRT, the court said it is not open for the Tribunal to engage in an enquiry which would impugn the sentence. This position was affirmed in HZCP v Minister for Immigration and Border Protection. The essential facts found by the learned sentencing judge concerning the sentence and upon which the sentence is based must be accepted. Even if there is an argument that the ages of the complainants is not an essential fact upon which the sentence is based, nonetheless having regard to the evidence before the Tribunal, the Tribunal accepts each complainant was 16 years of age. 31 Significantly, the concluding sentence of [128] which records a finding of the Tribunal as to the ages of the complainants based on the evidence before it, is unchallenged. It follows that this ground is academic. If the applicant had succeeded, what was sought was a finding by the Tribunal as to the age of the complainants, and that finding was in fact made by the Tribunal. 32 The applicant's submission that the last sentence in [128] was not a finding but a "throwaway line", cannot be accepted. The Tribunal plainly made an alternative finding, if it was incorrect about its conclusion that it could not look behind the conviction. 33 The applicant's submission is flawed because it conflates two separate concepts: first the objective age of the complainants, and second, the subjectively held belief by the applicant with respect to their age. The applicant's contention below, that because he claimed to believe that the complainants were in their early to mid-twenties, the Tribunal ought to determine for itself whether it was satisfied that each complainant was a child, was predicated on that conflation. 34 Leaving aside the findings of the Tasmanian Supreme Court, all the evidence before the Tribunal, which included a transcript of the audio interview with the complainant of the second offence in which he said he was sixteen years old and was born in 1994, redacted statutory declarations of both complainants with 1994 as their years of birth and the Crown statement of facts which referred to both complainants as being 16 years old, plainly established, as the Tribunal concluded at [128], that the complainants were 16 years old. 35 The only evidence relied on by the applicant is that he believed the complainants were in their "early to mid-twenties". Plainly the applicant's belief does not establish the age of the complainants. Even if it were accepted that the applicant might have been mistaken about the age of the complainants, that does not alter that, as a matter of fact, the complainants were 16 years old. Rarely is an offender's knowledge of the complainant's age in a sexual offence, where the complainant is a minor, relevant to the guilt of an offence. Nor could the applicant's knowledge, or lack thereof, alter that the offences were properly characterised as sexual offences involving a child. That latter aspect was ultimately accepted by the applicant during the hearing. 36 That said, the applicant's submission that the Tribunal was required to make a finding as to the age of the complainants cannot be accepted. 37 As noted above, one of the two powers to cancel the visa in this case arose because of the fact that the applicant had been convicted of one or more sexual offences against a child: s 501(6)(e)(i) and at the time of the cancellation, he was serving a sentence of imprisonment on a full-time basis in a custodial institution: s 501(3A)(b). 38 It was accepted by the applicant, that where a conviction or sentence are the foundation of the exercise of a power vested in the Minister, it is not open to the Tribunal, when reviewing the decision of the Minister, to impugn or go behind the conviction or sentence or both. Recently, in HZCP, McKerracher J at [62]-[63] stated: In Daniele and Gungor, s 12 of the Migration Act conferred a power to order deportation where an alien had been convicted of an offence of a specified kind. SRT and Ali involved decisions under s 200 of the Migration Act, which replaced the former s 12 and was relevantly in the same form when read with s 201. The power which was exercised had to be founded on the objective fact of a conviction. These cases gave rise to the statement of principle in LLF and the principles that derive from these cases have subsequently been applied in single judge decisions in this Court. Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends. That is the point of the deportation cases, as recently succinctly summarised in LLF. The position is not different in substance in the present situation where the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1). 39 To the same effect, Colvin J at [193]-[195] stated: The first limb is that the person passes the character test. The character test enumerates a number of matters each of which mean that a person does not pass the test. Many of those depend upon a person having been convicted of an offence or having received a particular sentence for a criminal offence. None of those provisions invites an inquiry as to whether the conviction or sentence was properly imposed or the truth or otherwise of the facts upon which they were based. The required state of satisfaction is as to the fact of the specified conviction or sentence. Other parts of the character test enumerate matters that require an evaluative judgment to be formed. They each concern matters of criminal behaviour or a risk to security. Therefore, where the question is whether a person fails to pass the character test by reason of a conviction and sentence, the first limb does not invite an inquiry as to whether the conviction or sentence was properly imposed or properly supported by the facts. The second limb is 'another reason why the original decision should be revoked'. The use of the words 'another reason' directs attention to any topic other than the matters that mean the person does not satisfy the character test. They assume that the decision-maker has not been satisfied of the first thing (namely, that the person passes the character test). The focus upon 'another reason' means that the consideration is to be undertaken on the basis that the person does not pass the character test. If the failure to satisfy that test is due to a criminal conviction or sentence then it assumes that there is confidence to be reposed in the fact of the conviction or sentence (and the facts upon which it was based). The decision-maker considering whether there is 'another reason' under s 501CA(4)(b)(ii) must accept that the person has been convicted or sentenced in a manner that means they do not pass the character test. They are not authorised to go behind that aspect. It is not 'another reason' if the reason is to refute the first limb. Such an approach would undermine the first limb and allow a person to claim that the visa cancellation should be revoked because the factual matters that necessarily underpin the conviction or sentence are not true. The other reason would become no more than a challenge to the approach to the subject matter of first limb that the legislature requires the decision-maker to adopt. In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked. 40 The applicant's reliance on Ali, does not advance his case. Although the applicant refers to the observations of Branson J at [43], it is necessary to put those comments in context. Branson J stated at [42]-[43]: Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT). Thirdly… in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing. 41 Two points are immediately apparent: first, consistent with HZCP, where the conviction and sentence are the foundation of the exercise of the power, the Tribunal when reviewing the decision may not impugn or go behind either the conviction or the sentence; and second, the observations of Branson J in [43] above, relied on by the applicant, relate to circumstances not being the conviction and sentence upon which the power to deport is based. 42 As noted above at [1], the power to cancel the visa in this case arose on two separate bases, one of which was that the applicant had been convicted of one or more sexual offences against a child as a result of the Tasmanian convictions: s 501(6)(e)(i). Moreover, the applicant's submission that the Tribunal only proceeded on the basis that he failed the character test on the basis of his substantial criminal record (and not on the sexual offending against a child) cannot be accepted. The reasons of the Tribunal, properly read, make plain both bases were accepted. The applicant can gain no support for his approach from Ali. 43 The applicant's submission that the age of the complainants was not an essential element of the Tasmanian offences does not alter the fact that the offences were sexual offences involving a minor. During submissions the applicant correctly accepted that if the complainant of a sexual offence was a minor, that offence could satisfy s 501(6)(e)(i) of the Migration Act, regardless of whether the age was an element of the offence. As a matter of statutory construction, the text, considered in context and given the purpose of the provision, supports that conclusion. 44 The applicant was convicted of having committed the offences, and, as the Tasmanian Supreme Court concluded, the two complainant's were 16 years old. It was plainly a matter taken into account in imposing the sentence. As the Court concluded, immediately before sentencing the applicant, he "paid little regard to the age of those he propositioned or their interest in what he had in mind. He ultimately intimidated a vulnerable sixteen year old youth into accompanying him to his hotel room". 45 In any event, even if there were an error in the finding by the Tribunal that it was not permitted to go behind the conviction, it could not have been material within the meaning in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[46], because, as explained above, the factual finding was made by the Tribunal. In the context of this case such a finding was inevitable on the evidence. Accordingly, any error could not have made any difference to the outcome. 46 It follows that this ground is not established.

Ground 2: failure to consider evidence and submissions/irrational or illogical finding

Submissions 47 This ground is directed to the Tribunal's conclusion at [204], when addressing the extent of any impediments to the applicant if removed from Australia, that there was an "absence of any acceptable evidence that there is a rightly held basis" for the applicant's fear of returning to Sierra Leone. The applicant submitted that there "was plenty of evidence put forward by the applicant as to why he was fearful of returning to Sierra Leone". The applicant submitted that this included, but was not limited to, his significant mental health problems, (including his PTSD and the uncontested medical reports that he would suffer psychological and emotional hardship and was vulnerable to self-harm and suicide if forced to return); the fact that if his health issues are untreated his risk of offending (including in Sierra Leone) would remain elevated; that he had previously been detained and interrogated in another African country because the local authorities had been advised that he was on the Sex Offenders Register (and the same might happen in Sierra Leone); and his likely treatment in Sierra Leone if the nature of his offending became known, based on the country information. The applicant complained that this evidence was not considered in any detail by the Tribunal, "which simply swept it aside on the apparent basis that it was not 'acceptable evidence'". The applicant contends that the Tribunal here fell into the same sort of error as in cases such as GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [32] and EGH19 v Minister for Home Affairs [2020] FCA 692, and that the error is material in that if there had been an active intellectual engagement with the evidence and submission, there must be a realistic possibility of a different outcome, citing: DCC18 v Minister for Immigration [2020] FCA 395 at [40]. 48 The respondent referred to what the applicant identified in his Statement of Facts, Issues and Contentions as constituting impediments to his return to Sierra Leone. The respondent submitted that care must be taken not to consider this ground in retrospect, and that the Tribunal's reasons must be assessed in light of the way in which it was put before it, which was said to be the relevant paragraphs under the heading impediment in the Statement of Facts, Issues and Contentions filed by the applicant below. The respondent submitted that against that the Tribunal identified the applicant's submissions and evidence put forward by the applicant in respect of his fear of returning to Sierra Leone at [192] - [198]. The respondent identified where it submitted the Tribunal had regard to and dealt with the impediments referred to in those paragraphs. Thereafter, reference is also made by the Tribunal to the respondent's submissions. The respondent submitted that having considered the evidence and the submissions, the Tribunal concluded that, although it accepted that the applicant had a genuine fear of returning to Sierra Leone, there was no "acceptable evidence that there is a rightly held basis for such fear" at [204]. As to the findings that there was no "rightly held basis" for the applicant's claimed fear or "acceptable evidence", the respondent submitted that when read fairly, and without an eye finely attuned to the detection of error, the Tribunal's finding in this regard is clear. It accepted that the applicant had a subjective fear that certain matters would impede his return to Sierra Leone but it was not satisfied that his fear had an objective foundation. The finding that there was no "acceptable evidence" was no more than a finding that the Tribunal was not persuaded by the evidence that was adduced and that the Tribunal accepted the Minister's submissions in this regard. It was submitted that this is evident of an active intellectual engagement by the Tribunal. It was also submitted that the complaint rises to no more than a complaint regarding the language used by the Tribunal to express its conclusions, citing: Inglewood Olive Processes Ltd v Chief Executive Officer of Customs [2005] FCAFC 101 at [26]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [48].

Consideration 49 It is appropriate to consider the impugned paragraph as it provides the entirety of the reasons on this topic under the heading "conclusion, other consideration 5, the extent of impediment if removed". At [204] the Tribunal concluded: The Tribunal accepts that the Applicant has a genuine fear of returning to Sierra Leone because of his childhood trauma, reports about poor standards and human rights issues, together with those factors referred to above. However, in the absence of any acceptable evidence that there is a rightly held basis for such fear and that an impediment does exist, the Tribunal does not accept that this factor will, in fact, be an impediment to the level submitted by the Applicant. 50 There is no issue between the parties as to the relevant legal principles that guide this ground of review, the issue is with their application to this case. Recently the Court in GBV18 v Minister for Home Affairs [2020] FCAFC 17 summarised the relevant principles at [32]: [emphasis in the original] Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to "consider" a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows. (a) Even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ). (b) Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence. (c) The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister's statements of reasons in the two cases there stated that he had "given full consideration to all of the information before me" and that the reasons contained numerous statements by the Minister that he had "considered", "noted", "accepted", "recognised" or "had regard to" various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive. (d) The decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added): By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. (e) Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia's non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker "may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law". (f) The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error. (g) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases. (h) Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker's ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed. 51 These principles have recently been applied in DQM18 v Minister for Home Affairs [2020] FCAFC 110 and EVK18 v Minister for Home Affairs [2020] FCAFC 49. 52 The respondent placed particular emphasis on sub-paragraph (e) in the passage recited, submitting that it is not always necessary to make such factual findings. 53 Although it may be accepted, as the respondent contended, that the Tribunal's reasons must be assessed in light of the way in which it was put before it, the extent of the reliance placed on the Statement of Facts, Issues and Contentions as governing the extent of the consideration of the issue in the reasons, in this case, is misplaced. That document necessarily identified the topics relied on by the applicant but, as the respondent accepted during the hearing, it did so in the context of the evidence put before the Tribunal. 54 It may also be accepted, as the respondent contended, that the reasons of an administrative decision maker are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. However, the reasons only summarise what the Tribunal says are the applicant's concerns should he return to Sierra Leone and the respondent's reply, and, with two limited exceptions, made no findings as to those matters leading up to the conclusion at [204]. These findings both occurred before the Tribunal recited the applicant's submissions. 55 The first is at [192] where the Tribunal stated: The Applicant suffers from bipolar affective disorder and is prescribed sodium valproate. There is no evidence before the Tribunal with respect to medical support that will be available to him in Sierra Leone, however the Tribunal accepts that it will not be to the standard one might expect in Australia. 56 The second is in the next paragraph, at [193], where the Tribunal stated: The Applicant has been employed in a range of industries in Australia and has extensive experience in the humanitarian work. He likely has the capacity to gain employment if returned to Sierra Leone. 57 Those findings contained no more reasoning than appears in the recited passages. 58 It may be accepted that a Tribunal's failure to refer to a matter does not necessarily give rise to an inference that it was not considered or that the Tribunal did not actively engage in the intellectual process. Each case is fact specific. 59 However, a proper reading of the reasons gives rise to the inference that the Tribunal failed to consider and/or have any meaningful engagement with the applicant's claims as to the impediments faced if forced to return to Sierra Leone. 60 Given the number and different bases relied on by the applicant under this consideration, and the evidence relied on, there is no apparent reason why it was not necessary to make factual findings in respect to the matters. Rather, the circumstances of this case were such that the Tribunal's acknowledgment of some of the representations made with limited findings, without more, was insufficient. Although the respondent submitted that [204] involved a consideration of the matters relied on by the applicant, with the Tribunal impliedly having accepted the respondent's submissions, the respondent did not address any submission as to why, in the circumstances of this case, it was unnecessary to make factual findings on the matters relied upon. 61 To take an example: one basis identified at [38] of the applicant's Statement of Facts, Issues and Contentions is that the applicant would also face significant difficulties in dealing with his mental health issues in a country where access to even basic health care is very limited. 62 A number of reports from various medical professionals were before the Tribunal which addressed the applicant's mental health issues and included diagnoses, treatment and the consequences of a lack thereof. The diagnoses most relevantly included, bi-polar disorder (not diagnosed until March 2018) and post-traumatic stress disorder (PTSD), which as at 2018 he was found not yet to have received appropriate treatment. The PTSD stemmed from having been exposed to severe violence, including actual and threatened death in the context of the war in Sierra Leone (the details of which are unnecessary to recite, although one report writer described them as some of the most extreme stories that she heard). The applicant also suffered physical and sexual abuse as a child. One such report in April 2018 which addressed any impact on his mental health of returning to Sierra Leone, concluded that "the applicant would deteriorate into suicidal depression should he be required to leave Australia." In late April 2018 the applicant was admitted to the Royal North Shore hospital for one week, having been brought to the hospital by the police because of suicidal and homicidal ideation. The evidence before the Tribunal was from that time the applicant had been appropriately treated and he had significantly improved. In addition, there was evidence from the applicant and his wife directed to these topics. Information in the form of country reports was also provided. 63 Although the medical evidence was summarised in the reasons, and the applicant did not take issue with the accuracy of that summary, it was in the context of the Tribunal considering the protection of the community and assessing the applicant's risk to the community and how his mental health issues may have contributed to his offending. However, plainly, that was not the only relevance of the medical reports. 64 In the context of that evidence, the only reference to mental health issues when considering any impediments, was at [192] which is extracted in full above at [55]. For completeness I note that there was a reference to the respondent's submission at [200] that it accepted that the health system in Sierra Leone will not be as good as in Australia and is poor, but that there was no evidence about mental health care. 65 Nowhere in this section of the Tribunal's reasons, or elsewhere in the reasons, did the Tribunal address the evidence in respect to how the applicant's mental health issues may be impacted if he returned to Sierra Leone. In particular, there was no reference to the applicant's PTSD (or the suicidal ideation) and how they may be impacted on a return to Sierra Leone, and therefore no consideration of whether that may cause any impediment. Nothing in the reference to mental health issues in the Statement of Facts, Issues and Contentions, considered in the context of the evidence led, properly leads to this evidence not being relied on or considered. Evidence was led which was plainly directed to this issue. The sole reference to the applicant's mental health issues was that he was suffering from bi-polar disorder and the medication he was taking. Given the Statement of Facts, Issues and Contentions referred to mental health issues, there is no apparent basis for the Tribunal only to have found that the applicant's bi-polar disorder, but not his PTSD or suicidal ideation, was relevant to this consideration. I note that in the respondent's Statement of Facts, Issues and Contentions the respondent's reference to the applicant's impediment claim in relation to mental health issues included "returning to the place where he experienced the trauma that contributed to his PTSD". That statement referenced the applicant's submission to the delegate requesting revocation of the visa cancellation, which was before the Tribunal. That submission included, inter alia, the effect on his PTSD of returning to the country where the applicant had experienced the trauma and referred to evidence from a psychologist that the applicant "would deteriorate into suicidal depression should he be required to leave Australia". 66 In that context, it is difficult to understand how the Tribunal's conclusion at [204] reflected a meaningful consideration of this aspect of the applicant's claim. That conclusion was reached without any reference to the applicant's PSTD, any reference to the evidence relied on and without findings being made relevant to that evidence. There was no consideration, analysis or factual findings which led to the conclusion that that evidence was not acceptable or otherwise unpersuasive. 67 In relation to this ground the applicant also made submissions directed to the contention below that the applicant was fearful of being returned to Sierra Leone based on his concerns as to what would happen if it became known that he had been convicted of sexual offences against males. There were two related bases: firstly, that the penalties imposed for sexual offences in Sierra Leone are severe, and secondly, the discrimination experienced by people to whom homosexuality is imputed. Country information was provided to the Tribunal which was relevant to an assessment of that fear. This claim was in the context where there was evidence, including from the applicant's wife (who the Tribunal referred to as an "impressive witness" at [181]), that the applicant had previously been detained at gunpoint when travelling to take up a position with an international NGO previously in South Sudan, interrogated and forcibly returned to Australia. There was also evidence of a media article on the internet about his 2012 Tasmanian convictions in which the applicant was named. Although the respondent submitted that there was no reason to suspect that his sexual offending would become known, or that the applicant would otherwise come to the attention of the authorities or others in Sierra Leone as a result of the media article, the Tribunal did not address the issue or make any findings in that regard. At [195] the Tribunal referred to the applicant's submission that his convictions and imputed homosexuality would impact on his ability to gain employment, but this was not addressed and no findings were made. Indeed, the finding by the Tribunal at [193] that the applicant "likely has the capacity to gain employment if returned to Sierra Leone" is made prior to reciting the applicant's submissions. The terms of that finding reflect that it was based on the applicant's extensive work experience in a range of industries, and without any apparent regard to the applicant's submission of the impact of his convictions for sexual offences, the media article or his mental health. 68 It follows that the conclusion at [204] does not reflect that a meaningful consideration was given to the representations and evidence relied on. 69 Further, and quite separately, there are also issues with the meaning of [204]. That conclusory paragraph appears to only address the applicant's fear of returning to Sierra Leone, combining the number of bases relied on and equating them to being "an impediment". Direction 79 requires the decision maker to consider any impediment if removed, taking into account inter alia, the applicant's age, health and any social, medical or economic support available. If the two findings at [192]-[193], which were before the Tribunal's recitation of the applicant's concerns and made without apparent reference to them, are said to have addressed those aspects of the direction, for the reasons above, they failed to properly do so. If the conclusion in [204] was confined to the fear expressed, that appears to have unduly narrowed the application of this consideration. This is particularly so where, for example, the evidence relied on as to the applicant's health included independent and objective medical evidence. The Tribunal's conclusion that in the absence of acceptable evidence that there is a "rightly held basis for such fear" the Tribunal "does not accept this factor will in fact be an impediment" tends to reinforce that was the Tribunal's approach. Mindful that the reasons are not to be read with an eye attuned to error, the passage cannot simply be accounted for on the basis of infelicitous language. 70 As is clear from the nature of this ground of review, each case necessarily turns on its own facts: GBV18 at [32(b)]. 71 In this case the error is established. The error is a jurisdictional error, it was material error: see the discussion, Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [61]-[69]. Indeed, the respondent did not suggest in relation to this ground, in contrast to ground 1, that if established, it would not be a material error. 72 The applicant has established this ground of appeal.

Submissions 73 The applicant submitted that he had emphasised the importance of passing on his African culture to his daughter, but that the "Tribunal might be (barely) regarded as having dealt with the issue of ML's access to culture". The applicant also complained that this was addressed under the Tribunal's consideration of the strength, nature and duration of the applicant's ties to Australia, rather than appropriately under the best interests of the child. This is in a context where the former item is an "other consideration", while the latter is a "primary consideration", and Direction 79 at 8(4) explicitly requires decision-makers to generally give greater weight to "primary considerations" than the "other considerations". The applicant submitted that there was evidence that the passing of the applicant's culture was something very important to ML and that it was regarded as being very positive in relation to her best interests and therefore it is quite probable that, had this evidence been considered under the correct heading, the primary issue of ML's best interests might well have been upgraded to something higher than "medium weight". 74 The respondent submitted that the applicant's submission is not based on a fair reading of the Tribunal's decision. Rather, it should be read that in considering the best interests of the applicant's daughter, the Tribunal expressly referred to the evidence of the applicant and his wife regarding their daughter's connection to African culture at [153], and therefore the Tribunal's conclusion that it accepted the evidence of the applicant's wife should be understood as accepting her evidence regarding the effect of removal on her daughter's connection to African culture. The respondent submitted that this conclusion is fortified by the finding at [187] where the Tribunal expressly held that the applicant's daughter "will also lose the opportunity to learn and develop her African culture, albeit the applicant will be able to continue to communicate with her by various electronic means". The respondent acknowledged that this finding was not under the heading "Primary Consideration B: The best interests of minor children in Australia". The respondent submitted however that it is artificial to segregate the Tribunal's analysis in the manner contended for, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; [2003] HCA 30 at [14]. It was submitted that where the issue was identified by the Tribunal as relevant to the best interests of the applicant's daughter, and where the Tribunal made a finding in respect of the issue at another point of its decision, the Court should not infer that the Tribunal overlooked or failed to consider the contention raised, referring to Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].

Consideration 75 As the respondent correctly contended, the Tribunal in summarising the submissions in respect to Primary Consideration B, did refer at [153] to the "[a]pplicant and NM also state that, without the [a]pplicant present, ML is denied her African culture". However, it does not necessarily follow from that, that the conclusion under the heading for Primary Consideration B at [160] that the "Tribunal accepts the evidence of NM and in particular that the Applicant is a loving and caring parent and that there is a strong bond between the Applicant and ML" impliedly reflects the Tribunal's consideration of the denial of ML's African culture. Indeed, the passages that follow that conclusion made no reference to the submission as to the loss of ML's African culture. I note also that the applicant had relied on other evidence in support of the cultural aspect of the submission. Rather, the finding with respect to the denial of ML's African culture was at [187] where the Tribunal concluded, in respect to the issue of the strength nature and duration of the ties, that "ML will also lose the opportunity to learn and develop her African culture, albeit the Applicant will be able to continue to communicate with her by various electronic means." One might wonder why this conclusion was necessary at this point, if it was part of the earlier conclusion in relation to the interests of the minor, as contended for by the respondent. 76 The respondent relies on the observations of Gleeson CJ in S20/2002 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 77 That may be accepted. The difficulty in this case is that the Migration Act requires certain considerations to be given primary weight over others. It is not a question therefore simply of whether a matter was considered, but it is relevant as to what consideration it related to. 78 The evidence before the Tribunal, and the Statement of Facts, Issues and Contentions, reflects that this was a matter of some import, and relied upon in respect to the best interest of the child. 79 Contrary to the respondent's contention, this ground is not in the context of the reasons otherwise being comprehensive: cf: Applicant WAEE at [47], given the finding in relation to ground two. Nonetheless, even accepting that an inference of failing to consider should not be too readily drawn: cf: Applicant WAEE at [47], given that the issue was identified, the failure to refer to this matter, given its significance to the applicant's submission except in relation to another consideration, gives rise to the inference that its relevance was seen by the Tribunal to be in that context. 80 That said, given the conclusion in relation to ground 2 it is unnecessary to decide this ground as the matter must be remitted to the Tribunal.

Conclusion 81 The decision of the Tribunal is to be set aside and the matter is to be remitted to the Tribunal for redetermination according to law. 82 The first respondent is to pay the applicant's costs of the application. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

Criminal Code Act 1924(Tas)s 385A

Migration Act 1958(Cth)ss 501, 501CA

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