Koranteng v Minister for Immigration and Border Protection

Key legislative provisions 13 It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provided: (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 full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 14 That provision referred, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provided as follows: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 15 Section 501CA provided: (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.

Background facts 16 The following statement of background facts is based on the material in the Court Book, as supplemented by two affidavits of the applicant, dated 10 August 2017 and 17 August 2017. 17 The applicant first arrived in Australia on a Subclass 572 visa on or about 9 September 2012. He was aged 26 years at the time he arrived. 18 On 19 March 2014, the applicant married his wife, who is an Australian citizen. 19 On 11 June 2014, the applicant was granted a Bridging A (Subclass 010) visa. 20 On 3 August 2014, the applicant committed the offences for which he was convicted. He was aged 28 years at the time of the offences. 21 On 6 August 2015, the applicant was found guilty by a jury of the offences referred to above. On 7 August 2015, the applicant was sentenced by a judge of the District Court of Queensland. The details of the sentence are set out above. In the course of his sentencing remarks, the District Court judge observed that the applicant had "shown no remorse" and that the "complainant has suffered a degree of emotional distress". The judge also noted that the applicant had no relevant criminal history, a good upbringing, and the support of his wife and community. 22 The applicant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland. The appeal was unsuccessful. 23 On 27 April 2016, the cancellation decision was made. 24 The applicant requested revocation of the cancellation decision on 18 May 2016, and provided submissions and material in support of his request. The applicant's migration agent, Samuta Migration, subsequently provided a detailed submission dated 2 February 2017. The material provided by the applicant included: (a) letters of support from the applicant's wife, uncle and mother-in-law; (b) letters of support from various community and church leaders; (c) a psychological assessment report from a clinical psychologist at the Forensic Psychology Centre (the Clinical Psychologist's Report); (d) affidavits filed in the proceeding in the Court of Appeal of the Supreme Court of Queensland; and (e) a statutory declaration of the applicant dated 2 June 2016 (the 2 June 2016 statement). 25 In the 2 June 2016 statement, the applicant made a number of comments under the heading "The likelihood of the conduct being repeated and risk to the community". In particular, the applicant noted at [13]-[17]: 13. I am very remorseful about my past behaviour and acknowledge the seriousness of the charges and convictions. 14. I understand the offence does not reflect well on my character. 15. I do not deny that my actions seriously impacted the interests of another citizen, however I am committed to being an upstanding member of society and will never again allow myself to find myself in a similar situation that led to my convictions. 16. There is no likelihood that my conduct will be repeated in the future, particularly given the nature of my rehabilitation and the support of my support network, as described below. 17. I have served the sentence imposed upon me with deep remorse and vow never to repeat such actions that led to the charges in the first place. 26 On 19 May 2017, the applicant's agent notified the Department that an application by the applicant for special leave to appeal to the High Court of Australia had been dismissed. 27 On 1 June 2017, the Assistant Minister decided not to revoke the cancellation decision (the decision of the Assistant Minister being referred to in these reasons as the Decision). The Decision was expressed in the following terms: Mr KORANTENG has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr KORANTENG passes the character test (as defined by s. 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s. 501CA(4) of the Act to revoke the original decision is not enlivened and Mr KORANTENG's Class WA Subclass 010 Bridging A visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons. 28 Also on 1 June 2017, the Assistant Minister signed the Statement of Reasons. The Assistant Minister concluded, at [9], that he was not satisfied that the applicant passed the character test (this being one of the bases for revocation, under s 501CA(4)(b)(i)). The Statement of Reasons then addressed whether or not the Assistant Minister was satisfied that there was another reason why the cancellation decision should be revoked (this being the other basis for revocation, under s 501CA(4)(b)(ii)). The Assistant Minister summarised, at [12], the reasons that had been put forward by the applicant in support of revocation, and then went on to consider these matters under the following headings: (a) best interests of minor children; (b) strength, nature and duration of ties; (c) extent of impediments if removed; and (d) protecting the Australian community. 29 Under the last of these headings, the Assistant Minister considered the applicant's criminal conduct (at [35]-[42]) and the risk to the Australian community (at [43]-[59]). In relation to the criminal conduct, the Assistant Minister stated, at [37], that given that the applicant's convictions remained undisturbed by the higher courts, the Assistant Minister gave no weight to the applicant's ongoing claims of innocence. The Assistant Minister said that he considered those claims "to demonstrate a lack of insight into the realities of [the applicant's] offending" (at [37]). The Assistant Minister set out, at [38], some details of the offences, drawn from the remarks of the sentencing judge. The Assistant Minister noted, at [39], that the sentencing judge had stated that the applicant had "no relevant criminal history whatsoever" prior to the offences. After referring to the emotional impact of the offences on the victim, and the length of the sentence imposed, the Assistant Minister concluded, at [42], that the applicant's offending was "very serious" and that it was "not in line with community values or expectations". 30 In relation to the risk to the Australian community, the Assistant Minister stated, at [43], that he had considered whether the applicant poses a risk to the Australian community through re-offending "by having regard to any mitigating or causal factors in his offending" and by "giving consideration to the steps [the applicant] has undertaken to reform and address his behaviour". The Assistant Minister also stated that he had "taken into account [the applicant's] overall conduct in the custodial and non-custodial environment, and his insight into the offending" (at [43]). In the course of this section of the Statement of Reasons, the Assistant Minister indicated, at [52]-[55], that he had considered the Clinical Psychologist's Report and quoted a number of passages from that report, including the finding that the applicant's "risk of future violence would be considered 'low'" (at [52]). The Assistant Minister then stated (at [56]-[59]): 56 I note the Judge's remarks on 7 August 2015 stated that Mr KORANTENG took advantage of a young and vulnerable woman and has shown no remorse. Mr KORANTENG has continued to demonstrate limited insight into his offending, and his remorse appears to largely be self-serving in that it relates to the consequences of his actions for himself and his wife rather than his victim. I note that his statement of 2 June 2016 makes very limited mention of the victim. I reject Mr KORANTENG's representative's characterisation of his remorse as 'deep'. 57. In assessing the likelihood that Mr KORANTENG will re-offend, I have taken into consideration his criminal history, his responsibility and limited remorse for his offending, the findings of the clinical psychologist report, his participation in bible courses along with his employment history, involvement with religious organisations including volunteer work and strong community support. 58. I have also given consideration to the nature of Mr KORANTENG's offending, having particular regard to the seriousness of sexual offending. I have also had regard to the Judge's remarks that Mr KORANTENG had shown no remorse and that his current commitment to rehabilitation has been untested in the Australian community. In conclusion, while the likelihood may be low, I find there still is an ongoing likelihood Mr KORANTENG may re-offend. 59. I consider that should Mr KORANTENG reoffend in a similar manner, it could result in physical/psychological harm to members of the Australian community. 31 The Assistant Minister set out his conclusions at [60]-[69] of the Statement of Reasons. In the course of this section, the Assistant Minister stated (at [66]-[68]): 66 Further, I find that the Australian community could be exposed to significant harm should Mr KORANTENG reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr KORANTENG. 67. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr KORANTENG represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor cousin [name omitted] as a primary consideration, and any other considerations as described above. These include his length of residence, his ties to Australia and the hardship Mr KORANTENG, his family and social networks will endure in the event the original decision is not revoked. 68. I am also mindful that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such people remain in Australia.

The application for judicial review 32 As noted above, by this proceeding the applicant seeks judicial review of the Decision. The grounds set out in the applicant's amended notice of application for judicial review are set out at [11] above.

Sections 501(3A) and 501CA 33 I provided an overview of ss 501(3A) and 501CA in Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [42]-[44]. I refer to that discussion, without setting it out.

Consideration 34 The applicant's submissions were, to a large extent, directed to the merits of the Decision. However, the grounds upon which the Decision can be challenged in this Court are limited to judicial review grounds, as distinct from the merits of the decision. 35 The applicant's submissions did not specifically address each of the particular grounds set out in his amended notice of application for judicial review, but were expressed more generally. In these circumstances, it will be convenient to set out each of the main arguments raised by the applicant followed by my consideration of the argument. 36 The applicant first submitted that the Assistant Minister's "assertion" that he was not remorseful was "unfair and unreasonable". In particular, the applicant contended that: the Assistant Minister had observed in the Statement of Reasons that the applicant did not mention the victim in his 2 June 2016 statement, and had viewed that omission as an indication that his expression of remorse was self-serving; the applicant rejected this suggestion because he had stated how deeply ashamed and remorseful he was and that he accepted responsibility for his actions, noting that he understood that his actions had caused harm to another person; and to "assert that my remorse expressed is self-serving because of a non-mention of the victim is unfair and unreasonable". The applicant also stated that, when he was charged with the offence, he was not allowed to have any contact with the victim and, therefore, was unable to offer an apology. He noted that he had recently sought to apologise to the victim by sending her a message on social media. A copy of that message was annexed to the applicant's second affidavit. 37 The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of the grounds for judicial review relied on by the applicant, or otherwise establish jurisdictional error. As noted by the Minister in his submissions, the relevant authorities concerning the review of administrative decisions on the ground of unreasonableness were summarised by Bromberg J in BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 at [14]-[17]. In particular, his Honour said at [14]: In two recent judgments, Allsop CJ, Griffiths and Wigney JJ have considered the content of the requirement that decisions be legally reasonable, which is to say that they must not be legally unreasonable. The first, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, contains a detailed discussion of that concept as set out in particular in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (see in particular Allsop CJ at [4]-[13] and Griffiths J at [52]-[62]). In the second, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, their Honours summarise in seven points what falls from Li, Singh, and Stretton, noting that the seven-point summary does not supplant or derogate from those cases. The seven points are these: [58] First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making. [59] Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness. [60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified. … [62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. [63] Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence. [64] Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes. [65] Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. (Citations omitted.) Applying these principles in the present case, the matters raised by the applicant do not establish legal unreasonableness. Although other decision-makers may have taken a different view (taking into account, in particular, [13]-[17] of the 2 June 2016 statement), it was open to the Assistant Minister to form the view that he did, namely that the applicant had made "very limited mention of the victim" in the 2 June 2016 statement, and to rely on this matter in rejecting the applicant's representative's characterisation of the applicant's remorse as "deep" (see the Statement of Reasons, [56]). Insofar as the applicant sought to rely on his recent apology to the victim by way of social media, this was not before the Assistant Minister and is therefore not relevant to the application for judicial review. 38 The applicant next submitted that: the Assistant Minister, in the Statement of Reasons, had suggested that the fact that the applicant had appealed his convictions in the higher courts indicated a lack of insight into the seriousness of his offences and that he had not taken responsibility for his actions; this "assertion" should be rejected because he was charged with very serious offences and believed he was innocent; he wanted to pursue the appeals to establish his innocence; and it did not follow that he did not take responsibility or that he had no insight into the reality of his offences. The applicant also referred to the advice he was given in relation to the merits of pursuing the appeals in the higher courts and the decisions that he had made based on that advice (some of which he regretted in hindsight). The applicant noted that he had now served his full two year sentence and that he had "not recorded a single unacceptable incident nor been involved in any criminal behaviour". 39 The matters set out in the preceding paragraph do not establish any of the grounds for judicial review relied on by the applicant, or otherwise establish jurisdictional error. At [37] of the Statement of Reasons, the Assistant Minister stated that, given that the applicant's convictions remained undisturbed by the higher courts, "I give no weight to his ongoing claims of innocence and consider them to demonstrate a lack of insight into the realities of his offending". It appears that it was the applicant's ongoing claims of innocence that the Assistant Minister considered to demonstrate a lack of insight into the realities of his offending. It was open to the Assistant Minister to reason in this way. 40 The applicant's third main argument was that the Assistant Minister's reliance on the sentencing remarks to form an adverse view of his "remorse, character and likelihood of reoffending" was "unfair and unreasonable". The applicant noted that: when he did not plead guilty to the charges, the prosecution "interpreted this as not showing remorse", and this was then recorded in the judge's sentencing remarks; he did not take the witness stand during the trial based on legal advice that he received at the time; to rely on the sentencing remarks in coming to a conclusion about his level of remorse was "inaccurate"; the Assistant Minister had shown "bias" in not taking into consideration the positive statements found in the sentencing remarks; and, in assessing his character, relevant past and present conduct should have been taken into consideration, not just the offences that had been committed. 41 In my view, it was open to the Assistant Minister to rely on the sentencing remarks in the way that he did. The Assistant Minister referred to the sentencing remarks in several paragraphs of the Statement of Reasons, making clear that he had regard to the whole of those remarks. The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of his grounds of judicial review, or otherwise establish jurisdictional error. 42 The applicant's fourth submission was that, for the Assistant Minister to suggest that he could not rule out the possibility of further offending, was "unfair and unreasonable". This was said to be the case having regard to: the evidence provided by the applicant, his family, his community and health professionals to the effect that the applicant was unlikely to re-offend; the fact that this was the applicant's first offence and he did not have any relevant criminal history or "behaviour pattern issues or social issues" suggesting a likelihood of re-offending; the fact that the applicant was on bail for a year before his trial and did not pose a risk to the community; and the fact that the applicant had been compliant and law abiding, consistent with his nature, since being charged and during his time in jail and detention. The applicant also submitted that: the Assistant Minister did not consider the relevant recommendations in the Clinical Psychologist's Report; the recommendations of, and the protective factors referred to by, the clinical psychologist in that report supported a conclusion that there was a low risk of the applicant re-offending; and although the Assistant Minister referred to the report, he did not consider the recommendations in the report. The applicant further submitted that the Assistant Minister did not conduct a character assessment but focused only on his offences. 43 The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of his grounds of judicial review, or otherwise establish jurisdictional error. It was open to the Assistant Minister to evaluate the risk of re-offending in the way that he did: see BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [44]. The Assistant Minister had regard to the submissions and material provided by the applicant, including the Clinical Psychologist's Report. The Assistant Minister discussed that report in several paragraphs of the Statement of Reasons and quoted the key recommendations at [52]-[54] of the Statement of Reasons. 44 The applicant's fifth main argument related to two particular comments made by the Assistant Minister at [48] of the Statement of Reasons. These were, first, that the absence of formal courses and counselling gave him "pause" in accepting the "full efficacy" of the rehabilitative programs described by the applicant's representative as "in depth" and, secondly, given the applicant's demonstrated commitment to his Christianity prior to his offending, it was unclear what impact his further bible studies were likely to have on his likelihood of re-offending. In response to these comments, the applicant submitted that: he was not recommended for any courses by corrections services; he was not serving a sentence that necessitated his participation in any rehabilitative programs in the corrections service; "even though I applied to be enrolled in various courses I was never offered the opportunity"; such an opportunity had only become available to him recently when he was transferred from the Yongah Hill Immigration Detention Centre to Christmas Island, where he "wasted no time and enrolled"; and, in the short period since then, he had attended formal counselling courses. Certificates from these courses were annexed to the applicant's second affidavit. 45 In my view, the matters set out in the preceding paragraph do not establish any of the applicant's grounds of judicial review, or otherwise establish jurisdictional error. The statements by the Assistant Minister in the Statement of Reasons need to be read in the context of the applicant's representations and the material provided by the applicant in support of the request for revocation. On 20 May 2016, the applicant's agent provided two "achievement certificates" to the Department (CB 80, 95). These related to bible study courses undertaken by the applicant while at Woodford Correctional Centre. In the 2 June 2016 statement, the applicant stated at [37] that "[m]y rehabilitation has not been in the form of formal counselling or coursework, but rather personal and professional reflection particularly facilitated by my wife and uncle" (CB 208). In the agent's 2 February 2017 submission, the agent submitted that the applicant had completed several courses and attended various rehabilitation programs during his imprisonment and detention (CB 155-156). The agent's email dated 13 February 2017 identified specifically the documents that were relied upon in relation to rehabilitation (CB 163, 167). These did not include the certificates annexed to the applicant's second affidavit (some of which post-date the Decision). In the context of these representations and the material the applicant had provided, it was open to the Assistant Minister to make the statements that he did at [48] of the Statement of Reasons. To the extent that the applicant seeks to rely on certificates that post-date the Decision, these are not relevant to his application for judicial review of the Decision. To the extent that the applicant seeks to rely on certificates annexed to his second affidavit with dates before the Decision, these were not provided by or on behalf of the applicant in support of his request for revocation. In these circumstances, it was not incumbent on the Assistant Minister to have regard to this material. As Tracey J observed in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42], "[o]nce the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made". 46 Finally, the applicant submitted that: the Assistant Minister had accepted that the applicant, his wife and family were likely to face hardship, but gave "less weight to how relevant it is to revoke the original decision"; this was "inhuman"; and the applicant had been in detention for over a year and had witnessed people with "much worse criminal history" being released into the community. The applicant also submitted that the Assistant Minister, in making the Decision, did not comply with the rules of natural justice or procedural fairness, as the applicant was not previously warned that criminal conduct could result in his deportation or visa cancellation, as others had been. 47 The matters referred to in the preceding paragraph do not establish any of the applicant's grounds of judicial review, or otherwise establish jurisdictional error. The weight to be given to the hardship that the applicant and his family would suffer (if the cancellation decision was not revoked) was a matter for the Assistant Minister to determine. The rules of natural justice or procedural fairness did not require a warning to be given before the applicant engaged in the criminal conduct. If the applicant contends that the process adopted following the cancellation decision did not comply with the rules of procedural fairness, there does not appear to be a basis for such a contention. The applicant was given the opportunity to make representations in support of his request for revocation of the cancellation decision and these representations were taken into account by the Assistant Minister. 48 For these reasons, none of the grounds of judicial review relied on by the applicant in his amended notice of application for judicial review is made out. It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the Minister's costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.