MKBL v Minister for Immigration, Citizenship and Multicultural Affairs

Relevant provisions of the Direction 4 The Direction expresses certain principles which 'provide a framework within which decision-makers should approach their task' of deciding whether to revoke the cancellation of a visa that has occurred in circumstances of a kind that applied to the applicant in the present case (para 5.2). The principles are as follows: (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they [have] engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community. (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age. (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community. (emphasis added). 5 It may be observed that at some points the principles refer to harm and at other points to physical harm. The principles deploy a number of different concepts. They appear to differentiate between a focus upon the seriousness inherent in the nature of certain conduct that has occurred (past conduct) and an assessment of the risk of harm being caused by a repetition of the conduct (future conduct). Finally, the principles refer both to criminal or other serious conduct (principle (2)) and conduct that raises serious character concerns (principle (3)). Both types of conduct are said to found an expectation that non-citizens engaging in such conduct will be refused a visa or have their visa cancelled if they hold one. The expectation is one that is both expressed as a basis upon which visas are granted and as basis upon which a visa will be refused or cancelled. 6 Of significance for present purposes are the references in the principles to serious conduct and conduct which raises serious character concerns as each justifying the cancellation of a visa even if the non-citizen does not pose a serious risk of 'physical harm'. 7 The Direction proceeds by stating that: 'Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision' (para 6). They are described as 'primary' and 'other' considerations. Paragraph 8 refers to the following as primary considerations: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; (4) expectations of the Australian community. 8 As to para 8.4, the Direction relevantly states: (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. (2) In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind: (a) …; or (b) …; or (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect; … (3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. (emphasis added) 9 Again, the distinction between serious conduct (including offending) on the one hand and serious character concerns on the other hand is evident. Both are expressed to be matters that give rise to community expectations, as a norm, that a person would not be allowed to enter or remain in Australia. The norm (expressed in terms of community expectations) is said to apply regardless of whether the person poses a risk of physical harm. 10 The contentions advanced by the applicant in support of his present application concerned the reasoning of the Tribunal in relation to the expectations of the Australian community, being the fourth primary consideration as articulated above.

Relevant parts of the Tribunal's reasons 11 In dealing with the first primary consideration, the Tribunal considered the applicant's past offending, the risk to the Australian community should he commit further offences and the risk of re-offending. After a detailed consideration of those matters, the Tribunal reached the view that 'the risk of the applicant offending as he has in the past' was 'at the lower end of low to medium' (para 96). 12 The Tribunal then found (para 97): The harm that would be caused should the applicant engage in the offending behaviour that he has in the past is serious. This, coupled with my assessment of the risk of the applicant re-offending being at the lower end of low to medium causes me to consider that this first primary consideration weighs moderately against revocation of the cancellation of the applicant's visa. 13 In reasoning to the above conclusions, the Tribunal addressed evidence to the effect that there was no dispute that psychological harm may be occasioned by non-contact sexual offending of the kind engaged in by the applicant. It was not suggested that there had been any physical harm caused by the applicant's past sexual offending. 14 There was no criticism by the applicant of these aspects of the Tribunal's decision. However, as explained below, the conclusion that such matters weighed moderately against revocation was said to have significance. 15 Then, after dealing with the second and third primary considerations, the Tribunal came to consider the fourth primary consideration which, as has already been explained, is concerned with community expectations. 16 As to community expectations, the Tribunal correctly explained that the Direction required decision-makers to proceed on the basis of the norm expressed in terms of the Government's views as to community expectations and not to undertake an independent assessment of such expectations as they might pertain to the particular case (para 134). On that basis the fourth primary consideration was identified as a consideration that weighs against revocation of the visa cancellation (para 139). The Tribunal then addressed the possibility that in some cases the community expectations consideration would not weigh against revocation of the cancellation of a visa. The Tribunal did not accept that the circumstances cited by the applicant or the circumstances of the case more generally were such that the stated norm as to community expectations should not apply (para 140). 17 The Tribunal then turned to the weight to be given to the community expectations consideration (para 141). The Tribunal referred to the terms of para 8.4(2) as providing some guidance to the effect that the Australia community expects that the Government 'can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed in [para 8.4(2)]'. This was to focus on character concerns manifested by the applicant's conduct. The Tribunal then said (paras 142-143): The applicant's grooming and using a carriage service to transmit indecent communications offences come within the category of offences in para 8.4(2)(c) of [the Direction] as both crimes committed against children and crimes of a sexual nature. These offences, accordingly, raise 'serious character concerns' (para 8.4(2)). The nature of the offences that the applicant has committed means that this consideration weighs against revocation of the cancellation of the applicant's visa regardless of whether the applicant poses a measurable risk of causing harm to the community (para 8.4(3)). Given the nature and seriousness of the offences, this consideration weighs moderately to heavily against the revocation of the cancellation of the applicant's visa. 18 It may be noted that the reasoning was on the basis that the nature of the offending raised serious character concerns.

The case for the applicant 19 The applicant's case focussed upon the absence of the word 'physical' in the part of para 143 (as quoted above) that said 'regardless of whether the applicant poses a measurable risk of causing harm to the community'. It may be observed that those words follow the terminology of para 8.4 save only that the word 'physical' is not used before the word 'harm'. 20 It was contended for the applicant that the omission of the word 'physical' indicated that the Tribunal had proceeded on the basis that the community expectation consideration may weigh moderately to heavily against revocation of the visa cancellation in the absence of risk of any harm. Taking account of written and oral submissions for the applicant, the contention advanced was to the effect that the omission of the word 'physical' showed that the Tribunal wrongly understood para 8.4 to require (or perhaps, allow) the Tribunal to take into account a norm expressed in the form of a community expectation that a non-citizen would not be allowed to remain in Australia on the basis of a description of past conduct which did not give rise to a risk of future harm of any kind whatsoever.

Applicant's proposed grounds of review 21 By his proposed review application, the applicant articulated two review grounds. 22 The first ground was to the effect that the Tribunal misunderstood para 8.4 of the Direction, particularly paras 8.4(2) and 8.4(3), as authorising the Tribunal to place moderate or heavy weight on the expectations of the community irrespective of whether the applicant posed any measurable risk of harm to the community when para 8.4 did not provide a basis for that course. 23 The second ground was advanced in the alternative. It was to the effect that para 8.4(3) was invalid because it required or authorised a decision-maker to refuse to revoke a visa cancellation irrespective of whether a person posed any risk of harm to the community. 24 It was the position of the Minister that the Tribunal took into account protection from harm as it was required to do by the Direction and therefore the foundational premise for the first ground was not established. The Minister contended that it was not the case that the Tribunal applied the community expectation consideration irrespective of whether the applicant posed any risk of harm to the community (or 'divorced' from any such risk). 25 On that basis, the position of the Minister was that ground two did not arise. Specifically, the Minister did not contend that para 8.4 of the Direction should be read as permitting or authorising adverse weight to be attached to the community expectation consideration regardless of whether the applicant posed any risk of harm to the community. On the basis of the Minister's position, the applicant did not press ground 2.

The substantive issue for determination 26 Therefore, in substance, the issue that the applicant seeks to raise if leave is given is whether the Tribunal reasoned on the basis that it did not need to reach a view as to whether the applicant posed any risk of harm of any kind in order to find, as it did, that the community expectation consideration counted against the applicant.

The issue must be determined against the applicant 27 For the following reasons, assuming leave were to be given, that issue must be determined against the applicant. 28 As has been explained, in considering the first of the primary considerations that the Tribunal was required to take into account where relevant (being protection of the Australian community from criminal or other serious conduct), the Tribunal concluded that there was a future risk of harm to the community if the applicant was to reoffend and that there was such a risk which, in relation to the applicant's sexual offending, was a risk of psychological harm. Therefore, by the time the Tribunal came to undertake the part of its deliberative task that concerned the community expectation consideration (as explained in para 8.4 of the Direction), it had already concluded that there was a risk of non-physical harm because of the nature of the past sexual offending by the applicant. There was no issue as to whether that was the case. Further, there is no suggestion that the case as put for the applicant before the Tribunal was to the effect that there was no such harm. Therefore, there was no reason for the Tribunal to be considering whether the norm applied even if there was no measurable risk of harm of any kind. 29 In those circumstances, the likely explanation for the omission of the word 'physical' from para 143 of the Tribunal's reasons is oversight. Significantly, as has been mentioned, the passage otherwise follows the wording of the Direction. 30 For the applicant, it was submitted that the immediate context of the statement in the reasons concerning a measurable risk of harm supports the conclusion that the omission of the word 'physical' was deliberate and that the Tribunal (erroneously) understood that the Direction required the norm to be applied adversely to the applicant even if there was no risk of harm. Reliance was placed upon the fact that the Tribunal's reasoning at para 143 is to the effect that the nature and seriousness of the applicant's past offending means that the expectations of the community weigh against revocation. This was said to focus upon past conduct and not upon future risk of harm. That is to say, it involved reasoning from the fact of the applicant's past offending irrespective of risk of harm, an approach which was said to indicate that the Tribunal was reasoning (erroneously) on the basis that community expectations as a norm could count against revocation even if there was no future risk of harm. 31 However, the applicant's submission fails to have regard to the immediate context in the Tribunal's reasons which is set by the terms of the previous paragraph (para 142). It concludes by describing the applicant's past offending as raising serious character concerns. This is the offending that the Tribunal had already identified as giving rise to non-physical harm and in respect of which it had concluded that there was a risk of re-offending that was 'at the lower end of low to medium' which meant there was a future risk of psychological harm. So, when the Tribunal at this later point in its reasons refers to the applicant's past offending as raising serious character concerns it should be understood as referring to offending in respect of which it has already formed those conclusions. Consequently, the Tribunal should be understood as reasoning that the nature of the past offending gives rise to the risk of re-offending that it has already found with the consequent non-physical harm that it has also already found. 32 For the applicant it was submitted that it should not be concluded that the Tribunal had in mind these earlier findings because of the different weight that it had given to the first primary consideration (which was concerned with the protection of the Australian community from the risk of harm). The applicant sought to contrast the Tribunal's conclusion as to the first primary consideration - that it weighed moderately against revocation - with the Tribunal's conclusion as to the fourth primary consideration - that it weighed moderately to heavily against revocation. The submission advanced for the applicant was to the effect that if indeed both considerations rested upon a view as to the risk of non-physical harm that may occur if the applicant was to re-offend then you would expect both considerations to be given the same weight. 33 However, this further submission for the applicant ignores the different perspectives that the Tribunal is required by the Direction to adopt in taking the two primary considerations into account. The first primary consideration requires the Tribunal to form its own conclusion based upon the available material as to whether there is a risk of future harm as part of reaching a conclusion concerning the protection of the Australian community. The fourth primary consideration on the other hand requires the Tribunal to apply a norm to the effect that certain types of past offending conduct (relevantly for present purposes crimes of a sexual nature) give rise to serious character concerns. This requires the Tribunal to give effect to that stated norm. This difference in perspective explains why the Tribunal may reach a different conclusion as to weight even though it is considering the same non-physical harm in each case. 34 It follows that it has not been established that the Tribunal deliberately omitted the word 'physical' from its reasoning in para 143 because the Tribunal wrongly understood what was meant by para 8.4 of the Direction.

Extension of time 35 The proper approach to be applied in considering whether to grant an extension of time in which to bring an application to review a decision of the Tribunal in migration cases was recently addressed by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28. As explained by Kiefel CJ, Gageler, Keane and Gleeson JJ at [12]-[18], the power is unfettered beyond the statutory requirements of a written application specifying why the applicant considers that it is necessary in the interests of the administration of justice for there to be an extension and the Court's satisfaction that it is necessary in the interests of justice to make the order. Other than the interests of justice, there are no mandatory relevant considerations. However, it is proper to refer to the well-established principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349. 36 Therefore, matters that may be taken into account include (a) the length of the delay; (b) whether an acceptable explanation has been given for the delay; (c) whether the respondent has suffered any prejudice; and (d) the merits of the application for review if leave were given. As to the merits, it will often be appropriate to assess the merits of the proposed grounds at a reasonably impressionistic level. However, where the delay is lengthy or unexplained the applicant may need to show that the case is strong or even exceptional in order to satisfy the Court that an extension in necessary in the interests of justice. As to these matters, see Tu'uta Katoa at [18]. 37 In the present case, the Minister accepts that there would be no prejudice if an extension was granted. Further, I am persuaded that there is arguable merit in the ground that the applicant seeks to advance. The ground depends upon a contention as to the proper interpretation of the Tribunal's reasons that is reasonably arguable. Further, if indeed the Tribunal had misunderstood the Direction in the manner alleged, then it appears that the error would be material. 38 There is some explanation for the delay in the difficulties faced by the applicant because he lacked funds to obtain legal advice and was dependent upon the assistance of others. The extension of time that is sought is relatively modest. The personal consequences for the applicant are significant. 39 Taking account of these matters, I am persuaded that it is necessary in the interests of justice for there to be an extension of time to enable the review application to be brought.

Conclusion and orders 40 In the circumstances, the application for an extension of time should be allowed but the application for review should be dismissed. It was accepted that costs should follow the event. There should be an order that the applicant pay the Minister's costs to be assessed on a lump sum basis if not agreed. 41 For reasons given by Jackson J in ECE21 v Minister for Home Affairs [2021] FCA 1447 at [6]-[7], the present case is not one to which s 91X of the Migration Act applies. In those circumstances, the proceedings having been conducted with the use of a pseudonym in circumstances where a pseudonym had been used by the Tribunal, submissions were invited from the parties as to whether an order should be made for the continuation of the use of the pseudonym. In the present case, I am satisfied that it is appropriate for an order to be made on the grounds specified in s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) given the matters addressed in the reasons of the Tribunal concerning the applicant's offending. I will make an order to that effect which will continue the use of the pseudonym. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.