RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 By an amended notice of appeal dated 25 June 2024 the appellant appeals from the primary judge's dismissal of his application for judicial review of a decision of the Administrative Appeals Tribunal: RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 254. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's visa. The visa had been cancelled by operation of s 501(3A) of the Migration Act. 2 The appellant is a citizen of the United States of America and Canada who has resided in Australia since December 2013, most recently on the basis of a partner visa. That visa was cancelled following the appellant's conviction of two offences: using a carriage service to transmit, make available, publish, distribute, advertise or promote child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (Schedule to the Criminal Code Act 1995 (Cth)); and possessing child exploitation material contrary to s 228D of the Criminal Code (Qld) (Scheule 1 of the Criminal Code Act 1899 (Qld)). 3 The appellant pleaded guilty to these two offences in the District Court of Queensland and was convicted. He was sentenced to imprisonment for 12 months in respect of the first offence (although he was to be released upon his recognisance after four months' imprisonment on condition that he be of good behaviour for two years). In respect of the second offence the appellant was sentenced to two years' imprisonment, however that sentence was suspended after four months' imprisonment, subject to the condition that he be of good behaviour for two years. 4 In affirming the delegate's decision not to revoke the cancellation of the appellant's visa, the Tribunal determined that it was not satisfied that there was "another reason" to revoke the cancellation of the visa pursuant to s 501CA(4)(b)(ii) of the Migration Act. 5 The appellant's primary review grounds before the primary judge centred around his contention that the Tribunal had failed to have regard to, cumulatively, the nature of harm to individuals or the Australian community should he engage in further criminal or other serious conduct, and the likelihood of him engaging in further criminal or other serious conduct. The appellant contended that the Tribunal had thereby failed to comply with Direction 90, being a direction made under s 499 of the Migration Act. 6 Relevantly for present purposes, the primary judge accepted that the Tribunal did not make any clear or express finding concerning the likelihood of the appellant engaging in further criminal or other serious conduct. His Honour found, however, that by proceeding effectively on the basis that there was a low risk of a possibility that the appellant might reoffend, the Tribunal "had regard to" that consideration. 7 The appellant submits that the primary judge was in error in holding that this was enough for the Tribunal to discharge its function. The sole ground of appeal which the appellant thus advances is as follows: The primary judge erred in finding that, by proceeding implicitly (or "effectively") on the basis that there was a low chance ("low risk") of a possibility of reoffending ("might reoffend"), the Tribunal "had regard to" the consideration in paragraph 8.1.2(2)(b) of Part 2 of Direction 90 and thereby properly discharged the duty under paragraph 8.1(2)(b) of Part 2 of Direction 90: cf. J [44]-[48], [54]-[57]. The primary judge should have found, consistently with the absence of any clear or express finding (J [44], [54]), that the Tribunal did not complete an assessment and evaluation of the likelihood, having regard to all of the appellant's personal circumstances, of the appellant engaging in further criminal or other serious conduct and, then, an assessment and evaluation of the extent to which the risk of it occurring is or is not acceptable with the consequence that the Tribunal did not discharge its duty under section 499(2A) to comply with Direction 90. 8 For the reasons that follow we have concluded that there was no error in the reasoning of the primary judge. 9 The starting point is to acknowledge that it is correct, as the primary judge observed, that the Tribunal did not clearly or explicitly refer to the requirement, pursuant to paragraph 8.1.2(2)(b) of Direction 90, to have regard to the likelihood of the appellant engaging in further criminal or other serious conduct. As has been mentioned, nor did the Tribunal make any clear or express finding in this regard. 10 Contrary to the submissions of the appellant, however, we do not accept that the Tribunal ultimately failed to complete its statutory task of evaluating the likelihood of the appellant re-offending in accordance with paragraph 8.1.2(2)(b) of Direction 90. We agree with the conclusion of the primary judge that it does not follow from the Tribunal's failure to refer to the requirement in 8.1.2(2)(b) of Direction 90 to have regard to the likelihood of the appellant engaging in further criminal or other serious conduct, or make any clear or express finding about such a likelihood, that the Tribunal did not "have regard to" that consideration, or "give consideration to" the risk to the Australian community should the appellant commit further offences, as required by paragraph 8.1.2(2)(b) and 8.1(2)(b) respectively. 11 The primary judge was correct to conclude in the circumstances here prevailing that, when the Tribunal's reasons are read fairly, and in the context of both the material that was before it and the parties' respective contentions, it is readily apparent that the Tribunal proceeded on the basis that there was a risk, albeit a low risk, that the appellant might reoffend. We accept in this regard, as his Honour found, that it was common ground between the parties that there was a low risk that the appellant might reoffend, and the appellant did not contend otherwise before the Tribunal. Nor did the appellant dispute the delegate's finding, or the Minister's contention, that there was a risk that he might reoffend. Indeed, as the primary judge noted, the Tribunal recorded in its reasons that during the hearing the appellant had conceded that it was "not possible to say 100% that he will not re-offend but he does not believe that he will". This was consistent with a letter the appellant sent to the Minister's department in which the appellant acknowledged that it could not be said that there was no risk, but whatever risk there was "is very low". 12 We also endorse the primary judge's second point in support of his conclusion that it is readily apparent that the Tribunal proceeded on the basis that there was a low risk that the appellant might reoffend. That is that the evidence which was before the Tribunal which bore on the likelihood that the appellant would reoffend unequivocally supported a finding that there was a risk, albeit a low one, that he might reoffend. As his Honour noted, the Tribunal addressed the evidence concerning the likelihood of reoffending at length. The Tribunal addressed the expert evidence from Dr GA and Mr K explicitly in its reasons, which included their opinions that the appellant has a low risk of reoffending. The Tribunal also recorded that the appellant had not explored or been treated for his longstanding sexual deviance, and that in circumstances where his suspended sentence and good behaviour bond had expired, and he was not subject to parole, it was not apparent from the expert evidence how the risks of the appellant being in the community could be managed by limiting his access to the internet, or how an appropriate supervisory framework could be established. Related to this, it is correct, as the primary judge observed, that although there was considerable medical evidence before the Tribunal on the subject of the appellant's possible autism, Noonan's Syndrome, or other disorder, this evidence was either equivocal or did not bear on the issue of the appellant's risk of reoffending. This evidence did not suggest, contrary to the opinions of Dr GA and Mr K, that there was no risk that the appellant would reoffend. 13 Plainly, as the primary judge observed, it would have been preferable for the Tribunal to have referred explicitly to the requirement in paragraph 8.1.2(2)(b) of Direction 90 to have regard to the likelihood of the appellant engaging in further criminal or other serious conduct. A clear and express finding as to the likelihood of the appellant engaging in further criminal or other serious conduct would also have been desirable. Nonetheless, we agree with his Honour's conclusion that the requirement under paragraph 8.1.2(2)(b) of Direction 90 is not that the Tribunal make an express finding concerning the likelihood of the non-citizen engaging in further criminal or other serious conduct. The requirement is that the Tribunal "have regard to" that consideration. 14 The primary judge was therefore correct to conclude that, fairly viewed, it cannot be said that the Tribunal did not "have regard to" the likelihood of the appellant engaging in further criminal or other serious conduct. As his Honour observed, noting the direction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that the Tribunal's reasons are not to be read "minutely and finely with an eye keenly attuned to the perception of error", even if the Tribunal was required to make a specific finding about risk, a fair and contextual reading of its reasons indicates that the Tribunal effectively found that there was a risk, albeit low, of the appellant reoffending. 15 It is for these reasons that in the particular circumstances of this case we reject the appellant's submission that the Tribunal ultimately failed to complete its statutory task of evaluating the likelihood of reoffending for the purposes of paragraph 8.1.2(2)(b) of Direction 90. Insofar as the appellant contends that the Tribunal must make a clear or express finding about the level or degree of risk, as distinct from having regard to such a risk, we do not accept that this is so: cf RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 at [73]-[74], [77] and, by contrast, Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866 at [66]. The reasoning in Jattan (at [66]), in relation to the relevantly identical Direction 99, is to be preferred. It is more faithful to the requirements, in this case, of Direction 90; see also the observations to similar effect in Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [65] and [68]. 16 The Tribunal's obligation is to comply with the requirements of Direction 90. In the present case the primary judge was correct to conclude that the Tribunal did so, even if there was some infelicity in the Tribunal's expression of its reasoning. The appellant's criticism that his Honour has, in effect, reconstructed, reworked or re-written the basis upon which the Tribunal's decision has been made is without foundation and should also be rejected. 17 The appellant's ground of appeal having failed the appeal will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Abraham and McEvoy.