Makasa v Minister for Immigration and Border Protection

Ground 1 - legal unreasonableness 31 This ground took issue with: (1) the Minister's reasons at [31]: Alcohol has been a factor in Mr MAKASA's criminal conduct to date. I note in 2005, Mr MAKASA caused a motor vehicle accident whilst under the influence of alcohol, and he has recently been convicted of a further drink driving offence in 2017. The trial judge presiding over Mr MAKASA's sexual offences observed that Mr MAKASA had been drinking the evening prior to the sexual offences and highlighted his mother's evidence that he was drinking a lot more than he should have at the time of the offences. (2) the Ministers' reasons at [101] to [104]: I find that the Australian community could be exposed to great harm should Mr MAKASA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr Makasa. The Australian community should not tolerate any further risk of harm. I found the above consideration outweighed the countervailing considerations in Mr MAKASA's case, including the best interests of the child, being his two children and step-daughter, treated as a primary consideration and the impact on family members. I have also considered the length of time Mr MAKASA has made a positive contribution to the Australian community, taking into account that he has lived in Australia for some 16 years. I find that in Mr MAKASA's case the risk of further harm is of such a seriousness that even the strong countervailing considerations outlined above are insufficient for me not to cancel the visa. In reaching my decision I concluded that Mr MAKASA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. and (3) the reasoning of the primary judge at [40]: These materials make it apparent that there was evidence before the Minister upon which it was open for him to conclude at [31] that alcohol was a factor in Mr Makasa's criminal conduct to date, including when Mr Makasa committed the 2006 underage sex offence. 32 Mr Makasa submitted that the above findings by the Minister lacked a rational or intelligible justification, were plainly unjust and capricious, were not supported by probative evidence and demonstrated illogical or irrational reasoning, citing well-established authority that if such characterisations are proven, then there is likely to be jurisdictional error. Mr Makasa sought to make good those characterisations by submissions to the effect that: (1) there was no real prospect that he would commit further sexual offences when regard is had to the 11 years that have passed since his commission of those offences, the lack of any repetition of such offences since 2006, the time he spent in the Australian community without demonstrating any propensity to engage in further sexual offences, the Minister's express findings that he had abided by his bail conditions, maintained satisfactory conduct while in prison and in immigration detention, and the Minister's acceptance of him taking responsibility for his conduct and his remorse, together with a strong prosocial orientation reflected in his commitment to education, employment, family and church; (2) the Australian community would tolerate his continued presence in Australia even accepting the characterisation that he posed a low risk of committing further sexual offences similar to those committed in 2006, having regard to the 2013 Tribunal finding to that effect, the minor nature of his 2017 convictions which did not demonstrate he had any propensity to engage in future sex-related offending, and the factors already referred to in the preceding subparagraph; (3) the Minister's apparent finding that alcohol was a factor in his sexual offences was not supported by probative material, because the sentencing remarks referred to only drinking the previous evening, the trial judge made no express finding that alcohol was a factor in the commission of the sexual offences, the Minister said he would make no findings with regard to the events of the prior night such that it was not open to demonstrate that alcohol was a factor, and because the evidence of his mother to the effect that he'd been drinking a lot more than he should have at the time of the offences did not demonstrate how alcohol influenced or played a role in committing those offences; (4) the evidence of the psychologist relied upon by the Minister to the effect that he had alcohol in his system after a night of heavy drinking when he committed the sexual offences had to be tempered by the Minister expressly declining to make findings as to what occurred the night before, and even if alcohol was in his system it was not clear how it played any role in the commission of the sexual offences - overall, neither the Minister nor the primary judge explained how alcohol was a factor in the sexual offending; (5) the Minister's decision demonstrated illogicality or irrationality as to the possibility that he would reoffend in a similar fashion to his 2006 sexual offences, given that the Minister and the primary judge accepted that the exclusive focus of the reasons for deciding to exercise the discretion to cancel his visa was the possibility that he would reoffend in a similar fashion, the potential of him engaging in future non-sexual offending had no logical or rational bearing on him engaging in further sexual-related offending, and it was not open to the primary judge to find that it was legally reasonable for the Minister to have regard to the 2017 PCA offence to demonstrate that he remained a low risk of committing further sexual offences in Australia, due to the lack of any demonstrated connection between alcohol and the sexual offending and the absence of any logical connection between the 2017 PCA offence and the 2006 sexual offences. 33 Each of the submissions summarised above indicate how a different conclusion could have been reached. However, it is not enough to establish legal unreasonableness that reasonable minds could differ and produce a different result. The conclusions reached by the Minister have to be shown to be outside the range of possible outcomes that could be acceptably reached, as a matter of the exercise of jurisdiction, on the material before him. For example, as the consideration below demonstrates, there was no need for the Minister to make any cause and effect finding between alcohol consumption and sexual offending before alcohol consumption-related offences could be treated as a risk factor in predicting future sexual offending. That is especially so as that was a contextual feature of past offending, including in particular the 2006 sexual offending. 34 The real substance of Mr Makasa's complaint is met by two parts of the Minister's reasons, which demonstrate that this ground of appeal, and the corresponding ground of review before the primary judge, is not supported by more than an emphatic disagreement with the Minister's reasoning and conclusions, as the tenor of the submissions made on appeal also suggests. As such, it did not rise higher than impermissible merits review. 35 First, the Minister considered the nature and circumstances of the 2017 PCA conviction (at [43]): In relation to his most current conviction for drive with middle range PCA - 1st offence, I note Mr MAKASA states he takes full responsibility and that he believed he had let enough time pass and consumed enough water after drinking alcohol to enable him to drive. However, I also note that Mr MAKASA's most recent offending involves drink driving in the mid-range, and I considered this is his second drink driving offence, albeit 11 years apart. I find the repeat drink driving offence demonstrates disregard for community safety and that further rehabilitative progress with respect to alcohol is required. 36 Secondly, the Minister summarised the effect of the assessment of a psychologist, Dr Ashkar, made in 2013, with a focus on the increased risk of sexual offending arising from alcohol consumption (at [45]-[46]): I have considered the assessment made by Psychologist, Dr Peter Ashkar on 12 August 2013 regarding Mr MAKASA's risk of recidivism. I note that he reported that Mr MAKASA does not constitute a serious risk to the Australian community and that Mr MAKASA's offending was limited to three sequences of offences between November 2005 and August 2006. I also note he reports the offending occurred during a time when Mr MAKASA was consuming large amounts of alcohol to manage stress. He reported Mr MAKASA had matured considerably and had reduced his alcohol consumption. He concluded Mr MAKASA was not a violent man and did not have an antisocial personality or a juvenile offending history. Dr Ashkar considered these factors placed him at the low end of the spectrum in terms of violence risk. His risk of sexual recidivism was estimated to be nine percent over a five year period which he also believed to be an overestimate inflated by Mr MAKASA's conviction for common assault. I note that Dr Ashkar reported Mr MAKASA required treatment for significant symptoms of anxiety and depression to minimise his risk of sexual recidivism. He identified that Mr MAKASA also required psychological treatment for management of his negative mood to minimise the risk of recidivism and that he would benefit from psychological treatment to assist with management of aspects of his personality that contribute to poor regulation. 37 When regard is had to [26]-[27] of the report from which the above observations were derived, it is clear that Dr Ashkar found that Mr Makasa had alcohol in his system at the time of his sexual offending, from heavy drinking the night before, and that substance abuse, including by way of alcohol consumption, is a well-documented and researched general risk factor in sexual offending recidivism. The primary judge was therefore correct to find (at [39]) that there was evidence by which it was open to the Minister to conclude (at [31], reproduced above at [31]) that alcohol consumption had been a factor in Mr Makasa's sexual offending. 38 Thirdly, the Minister summarised the effect of the material before him concerning the risk to the community (at [49]): Taking the above matters into account, I acknowledge that Mr MAKASA is a low risk of sexual reoffending, however I find Mr MAKASA to represent an ongoing likelihood of non-sexual reoffending. I find that Mr MAKASA's ongoing family support, his past term of imprisonment and visa cancellation matters have not had the deterrent effect considered by the AAT, and I therefore view his long term prospects with some caution. While Mr MAKASA's recent offences are less serious, I am concerned that he still requires further progress with respect to alcohol rehabilitation. If Mr MAKASA were to commit further sexual offences against a minor he could cause very serious physical and psychological harm to a member of the Australian community. If Mr MAKASA were to commit further domestic violence there is a risk he may cause physical harm or psychological harm to members of the Australian community. If Mr MAKASA were to commit further driving offences whilst under the influence of alcohol there is a risk he could cause an accident resulting in physical harm or financial loss to members of the Australian community. 39 The above passages led to the conclusions at [101] to [104], reproduced at [31] above. 40 The primary judge was correct (at [42]) to characterise [49] of the Minister's reasons as amounting to findings that: (1) there was a low risk of Mr Makasa reoffending with a sexual offence; (2) in the past there had been a connection between Mr Makasa's criminal conduct and alcohol use; (3) the 2017 PCA offence indicated that he had not been rehabilitated in relation to alcohol; and (4) there was, as a consequence, a low risk that he would reoffend with a crime of a sexual nature. 41 Mr Makasa's arguments as to legal unreasonableness in relation to the Minister finding a low risk of sexual reoffending therefore could not be accepted. The Minister sufficiently considered the effect of Mr Makasa's continued consumption of alcohol, in the context of the 2017 PCA conviction, and concluded that this contributed to a low, but continuing, risk of sexual re-offending. While this was a very pessimistic way in which to regard the effect of continued alcohol consumption-related summary offending on the risk of sexual re-offending, it cannot be said to rise to the level of legal unreasonableness. It was within the wide scope of discretion afforded to the Minister in considering the exercise of the visa cancellation power in s 501(2). That is especially so when the power is being exercised by the Minister in person. The Minister as a decision-maker in person, is a significantly different repository of power than a non-ministerial and non-elected executive decision-maker, freely able to make decisions in accordance with government policy within the framework of the Migration Act: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [61]-[63], [181] and [244]. 42 Mr Makasa also took issue with the Minister's consideration of the extent of the impediments he would face if he was removed to Zambia. This complaint concerned the finding that his aunt and extended family in Zambia would go some way in assisting him to adjust to live there, which Mr Makasa asserts lacked a rational foundation and was devoid of an intelligible justification when regard was had to the Minister's finding that he did not have a relationship with his aunt, and there was no overt evidence that his extended family would provide any support to him. This complaint went nowhere. The primary judge was correct to conclude, at [48], that the Minister's reasoning was not arbitrary or irrational in the relevant sense, given that the Minister made a predictive finding that, although the support may be limited, it would go some way to assisting him. 43 Ground 1 should have failed.

Ground 2 44 This ground of appeal, in keeping with the ground of review before the primary judge, in substance raises the issue of whether the Minister's exercise of the visa cancellation power in s 501(2) was properly engaged. The detail shifted as to why that is said to have been absent, but the underlying contention of a power being exercised when it was not legally available remained. 45 The judicial review argument before the primary judge was predicated upon the 2013 Tribunal decision not to cancel Mr Makasa's visa constituting an exercise of the visa cancellation power in s 501(2). Based upon that commonly understood legal framework, his Honour: (1) noted that Mr Makasa accepted that this ground had no merit if it was found that the Minister had relied upon the 2017 PCA offending to determine that he posed an unacceptable risk of harm to the Australian community, but that the argument was that he had not done so; (2) found that, on a fair reading, the Minister did take into account the 2017 convictions, and in particular, the 2017 PCA offence, as forming the basis for his conclusion under s 501(2); (3) applied s 33(1) of the Acts Interpretation Act 1901 (Cth) and the reasoning in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 at [36] that was consistent with that provision, to find that the power was able to be exercised again by reason of the 2017 PCA offence, and thereby to conclude that the ground could not succeed. 46 This ground of appeal, as developed in written submissions, relied upon the first instance decision in Brown v Minister for Home Affairs [2018] FCA 1722, and sought to distinguish Parker upon the same basis as the primary judge had done in that case. It was understandably not known at that time that his Honour's decision had been appealed by the Minister. 47 The appeal from the first instance decision in Brown v Minister for Home Affairs was the subject of a second appeal hearing day, which took place at the same time as the hearing of this appeal, and by the same bench: see Minister for Home Affairs v Brown [2020] FCAFC 21. 48 The aspect of this appeal ground asserting that the power in s 501(2) could not be exercised again based upon the 2017 PCA offence should have failed, because, for the reasons I expressed in Brown, there was no re-exercise of that power, it having not been exercised when the 2013 Tribunal set aside the decision of the delegate, and decided not to cancel Mr Makasa's visa, so decided not to exercise the cancellation power. However, that conclusion invites consideration of whether or not the ground of appeal can be understood as also effectively raising, although not in express terms, the issue of whether the Minister's treatment of the 2017 PCA offence gave rise to the lawful exercise of the power in s 501(2) by a finding that the change or difference represented by that offence was material. 49 It is not necessary to explore further whether such a ground of appeal is properly raised. That is because, even if it was raised, applying the principles I described in Brown as to what is required, in a jurisdictional sense, before the power in s 501(2) may be exercised by reason of a material change or difference since the 2013 Tribunal decision not to cancel was made, that requirement was met. That is because, in substance, if not in the express language used, a material change or difference was found to exist by the Minister by reference to the 2017 PCA offence, and that difference was also applied to reach the decision to cancel Mr Makasa's visa. That is evident from the reasoning in reaching the conclusion about ground 1. Moreover, there was no legal unreasonableness in the way in which that change or difference was addressed and applied, as also flows from the conclusion reached on ground 1. 50 Ground 2 should also have failed.

Conclusion 51 Contrary to the decision of the rest of this Court, I remain of the view that the appeal should have been dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.