Federal Court of Australia|1989-12-19

Re Tuong Quang Luu v Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 518 (19 December 1989)

And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Administrative Law - Immigration - Application for permanent entry permit - Application based on "strong compassionate or humanitarian grounds" - Applicant with criminal record of sexual offences - Operation on applicant for removal of both testicles - Subsequent reports of changed sexual behaviour - All close relations of applicant resident in Australia - Claim of "strong compassionate or humanitarian grounds" found by delegate to be established but application rejected because of "real risk" of recidivism - Whether applicant was accorded procedural fairness in connection with consideration of risk of recidivism - Whether there was evidence to support a finding of "real risk" of recidivism - Whether decision was unreasonable - Whether it was unreasonable for decision to be taken without obtaining further information known to be available.

Solicitors for the Appellants: Australian Government Solicitor

2. The appellants pay to the respondent his costs of the

appeal to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal against a decision of a Judge of the Court setting aside two decisions made by Tuong Quang Luu, the first appellant, as the delegate of the Minister for Immigration, Local Government and Ethnic Affairs, the second appellant. The decisions pertained to an application made by the respondent, George Joseph Renevier, for the grant to him of a permanent entry permit under s.6 of the Migration Act 1958. Mr Luu refused the application and determined that Mr Renevier should be deported from Australia to New Caledonia, pursuant to s.18 of that Act.

2. Mr Renevier is a French citizen. He was born at Port Vila, New Hebrides (now Vanuatu) on 24 March 1954. According to material which was before Mr Luu, he was the younger of two children of his parents' marriage. Both his parents were alcoholics and he and his sister were cared for by an aunt. At some stage the family moved to New Caledonia. Whether this was before or after the death of his father in 1965, is not clear. In June 1972 Mr Renevier, then aged 18 years, came to Australia with his mother and sister, both of whom are now permanent residents of Australia. However, Mr Renevier has never attained that status. He was admitted to Australia on a temporary entry permit valid for three months. There is apparently some question as to whether he ever made an application for the grant to him of a further entry permit; but it is common ground that, whether or not he did, no further permit was ever granted. After the expiration of the initial three month period, Mr Renevier simply remained in Australia without permission.

3. Until 11 September 1977 Mr Renevier was a "prohibited immigrant" under the Migration Act. However, on that day, the fifth anniversary of the expiration of his temporary entry permit, he ceased to be a prohibited immigrant by virtue of the then s.7(4) of the Act. Thereafter, he was entitled to continue to reside in Australia without the necessity of the grant to him of any further permit. That situation continued until 2 April 1984 when s.7(4) was repealed -- see s.8(2) of the Migration (Amendment) Act 1983 -- with the result that Mr Renevier became a "prohibited non-citizen" liable to deportation under s.18 of the Act.

4. It appears that Mr Renevier was born with an endocrine disease known as congenital adrenal hyperplasia (21-Hydroxylase Deficiency). This condition causes the secretion of abnormal quantities of androgenic steroids, including testosterone. It also causes the development of enlarged testicles. Before the trial Judge (although not before Mr Luu) there was revealed a history of sexual hyper-activity since puberty.

5. The material before Mr Luu also indicated that Mr Renevier is mentally retarded, a condition to which the disease may have contributed. Apparently, he attended school for only one year and is virtually illiterate.

6. In Australia Mr Renevier acquired a record of criminal convictions. With the exception of convictions for forging and uttering in 1980, those convictions were entirely sex-related. They commenced shortly after Mr Renevier's arrival in Australia, with convictions for wilful and obscene exposure in late 1972. In March 1976, Mr Renevier was convicted on a charge of indecently assaulting a male. Sentence was deferred, on his entering into a good behaviour bond. In November 1977 he was again convicted of indecent assault; on this occasion the assault involving a female under 16 years of age. Once again, Mr Renevier was given a bond, subject to conditions. In August 1978, an order was made that no action be taken in respect of the breach of the earlier bond.

7. In December 1984, Mr Renevier was sentenced in the Supreme Court of New South Wales to a term of nine years imprisonment on charges of indecent assault, sexual intercourse without consent and occasioning actual bodily harm with intent to have sexual intercourse. The convictions arose out of an assault by Mr Renevier upon an elderly neighbour. The Court fixed a non-parole period of six years.

8. In fact, Mr Renevier was released on parole on 15 September 1988. His behaviour in prison was reported as satisfactory. More importantly, while in prison he elected to have a surgical operation for the removal of both his testicles. This operation, known as an orchidectomy, was carried out in February 1985. Thereafter, according to a report prepared by Dr Robert Lewis, Registrar in Forensic Psychiatry at Parramatta gaol, Mr Renevier claimed "marked changes in his sexual behaviour":

"Firstly he reports the cessation of sexual

fantasy material, he is also unable to obtain

an erection either by the use of imagery or by

masturbation. He tells me that he has also

ceased experiencing spontaneous sexual

thoughts or impulses of a deviant nature.

This change has been consistent and maintained

over a prolonged period of time."

9. The possibility of the release on parole of Mr Renevier was first considered early in 1988. However, at that time the parole authorities were not satisfied that appropriate arrangements existed for his care and accommodation. Mr Renevier's sister, Mrs R M Fogliani, and her husband were prepared to have him live with them but they were in the course of moving their home from Sydney to Gympie in Queensland. It was not until that move had occurred that the parole authorities were prepared to authorise the release of Mr Renevier. When they did so they imposed conditions. Those conditions not only required Mr Renevier to place himself under the supervision of a parole officer, but also to attend a psychiatrist. Shortly after his arrival in Queensland Mr Renevier did so, seeing Dr Stephen Eckersley of Cooroy. In a report which was tendered to the primary Judge, but which was not before Mr Luu, Dr Eckersley included the following:

"Apart from the surgical treatment of Mr.

Renevier's excessive sexual hormone secretion,

he is taking Dexamethasone 500 micrograms, 1-2

morning and 1 tablet at night. This further

acts to suppress the secretion of sexual

hormones. Without the Dexamethasone George

began to experience erections again after his

first discharge from Gaol. Since the

Dexamethasone was re-instituted in October

1988, he has had no erections nor sexual

thoughts or fantasies.

George appears to have a strong motivation to

keep his sexuality totally under control. He

reports his excessive sexual feelings as a

young man as a burden upon him and alien to

his own concept of himself. He states that he

gladly had the operation to remove his

testicles, and this statement seems supported

due to the extremely good compliance shown in

the taking of Dexamethasone to further

suppress sexuality. When discharged from gaol

George had inadvertantly not been given a

supply of Dexamethasone. He knew the need for

this drug and although he could not remember

its name, stressed that I should write as soon

as possible to the gaol to find out the name

and dose of what he saw as a very valuable drug."

10. The application for permanent residence was made on 1 September 1988, shortly before Mr Renevier's release from prison. The application relied on s.6A(1)(e) of the Migration Act, it being asserted that there existed "strong compassionate or humanitarian grounds" for the grant of a permit. It was supported by a letter written by solicitors who had been instructed to act on his behalf by his sister and her husband. In the letter the solicitors advised that Mr Renevier's sister, her husband and her mother now lived in Gympie. They said that, apart from a half-brother who lived in Noumea and whom Mr Renevier had not seen for more than 12 years, Mr Renevier's entire family lived in Australia. The solicitors set out the arrangements proposed for the care and accommodation of Mr Renevier and contrasted that position with the situation which would arise if he were deported.

11. In his decision under review, Mr Luu accepted that there were strong compassionate or humanitarian grounds for the grant of a permanent entry permit. In para.15 of his statement of reasons, under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), Mr Luu said:

"15. In deciding the Applicant's request for

permanent residence I accepted that there were

strong compassionate or humanitarian grounds

for his being allowed to remain in Australia.

I accepted that he satisfied policy as the

'sole remaining relative' because he normally

resided in Australia and had had little

contact with his half brother in Noumea. In

making this finding I also accepted that the

Applicant would suffer significant hardship in

Noumea where he would be without the support

or care of his sister and mother. I accepted

that the Applicant would have difficulty in

caring for himself and was unlikely to receive

support from his half brother. The Applicant

has also resided in Australia since 1972 and

the hardship caused by his not being allowed

to remain in Australia would also be suffered

by his mother and sister. This is evident

from their continuing support towards the

Applicant which is commendable."

12. However, Mr Luu went on to say that, in considering the proper exercise of his discretion under s.6(2) of the Migration Act, he had decided that the discretion should not be exercised in favour of Mr Renevier, "taking into account the need for community protection from criminal behaviour". At paras.17 to 19 of his statement of reasons, Mr Luu said:

"17. I had regard to the Applicant's criminal

record which disclosed a history of sexual

offences, including sexual offences involving

children, the most recent of which was a very

serious sexual assault on an elderly female

neighbour accompanied by the threat of

violence with a knife. I considered that the

medical reports provided evidence that the

operation for removal of the tests (sic)

undergone by the applicant and the medication

which he is taking were likely to cause a

significant reduction in the risk of his

committing further sexual offences, but that

this risk had not been completely eliminated

and a real risk of recidivism remains. While

taking account of his stable family support

and his satisfactory record since release on

parole, I considered that the remaining risk,

albeit reduced of recidivism, was unacceptable

to the Australian community.

I considered that, regrettably, there would be

undoubted suffering caused to the Applicant by

his not being allowed to remain in Australia,

though this may be offset to some extent by

the assistance which could be provided to him

in New Caledonia by the Social Security

services and the medical and hospital

treatment that would be available in Noumea as

advised by the French Consulate General. I

weighed this against the possible suffering

that may be caused to any future victim should

the Applicant re-offend. I decided that the

latest offence involving a sexual assault was

of a very serious nature and in conjunction

with his previous offences, amounted to a

history of offences against members of the

Australian community, namely children and

frail older women, who in my view deserve

special protection due to their vulnerability.

I considered that in the circumstances, the

Applicant had committed a crime that was so

offensive to Australian community standards,

that the Australian community would not

readily approve having as a member a person

who had committed such an offence.

18. In assessing the interests of Australian

society, I also paid regard to the

compassionate interests of Society, and the

community's interests in the human rights of

the individual. I found the Applicant's case

extremely difficult to decide and found that

it involved complex and competing human needs

and social interests. I decided that the

interests of the protection of Australian

society ought to be given due weight.

19. In reaching the decision to order the

Applicant's deportation I took into account

the interests of Australian society, balanced

against the interests of the Applicant and his

family. I was aware that deportation should

not be used as any form of punishment.

Indeed, given the Applicant's medical

condition and mental state, it may well be

that he is himself hardly responsible or able

to control his actions.

I placed little weight on the fact of the

Applicant's illegal residence in Australia,

given his reduced mental ability and that

between 1977 to 1984 he was legally in

Australia and from 1984 to his release in 1988

he was in prison for his latest offence."

13. Before the primary Judge, Mr Renevier relied upon several of the grounds of review specified in s.5 of the Administrative Decisions (Judicial Review) Act. He was successful in obtaining a decision in his favour on each of two grounds: denial of natural justice or, in modern parlance, procedural fairness (s.5(1)(a)), and unreasonableness (s.5(1)(e) and (2)(g)).

14. The basis of his Honour's finding in favour of Mr Renevier in connection with procedural fairness was "that he was not given a chance properly to respond to the psychological and medical evidence concerning a possible risk of recidivism". As his Honour noted, the question of recidivism was at the heart of Mr Luu's decision to refuse the application. The psychological and medical evidence which Mr Luu relied on was identified by the primary Judge in his reasons for judgment. It consisted of two reports: one from Dr T Norris, a medical officer at Long Bay Gaol and the other from Dr Lewin. Dr Norris' report was dated 22 February 1985, a few weeks after the orchidectomy. The report was largely historical, but Dr Norris referred to advice received from Professor Steinbeck, who had advised that the orchidectomy be undertaken, that Mr Renevier should have hormonal therapy in the form of depo-provera. That treatment had not then commenced, as it had not yet been approved by the Health Department. Dr Norris concluded his report as follows:

"In summary Mr. Renevier has a history of and

is present in gaol serving a sentence for

sexual offences. He suffers with cogenital

(sic) adrenal hyperplasia and is borderline

mentally defective. However it is unclear

whether his sexual problem is the result of

his abnormality or the result of his social

upbringing, low intelligence and personality

problems.

As such it is not possible to say whether any

future or present medical treatment would be

affective (sic) in altering his sexual

behaviour. His recent orchidectomy was done

purely at his request for cosmetic reasons and

comfort."

15. We have already quoted a section of Dr Lewin's report, which was written almost three years later in January 1988. The quoted section sets out Mr Renevier's statements regarding the changes in his sexual behaviour. Dr Lewin seems to have accepted those statements because he went on to discuss their cause:

"The critical question in this regard is

whether the changes noted above are

attributable to his operation or perhaps due

to his imprisonment. I obtained the opinion

of an Endocrinologist, Dr Calligeros at Price

(sic) of Wales Hospital. He informs me that

the operation Mr Renevier underwent is likely

to lead to a complete suppression of the

production of the male sex hormone,

Testosterone. However, such a reduction in

hormone does not lead to a complete cessation

of sexual behaviour in a predictable manner.

I have discussed this sort of case in general

terms with senior colleagues, who are

generally of the opinion that a significant

reduction in drive to re-offend can be

expected, but that of course, it is not

possible to predict the future behaviour of an

offender in such circumstances.

Mr Renevier has been commenced on hormonal

treatment, as advised by Dr Calligeros, and in

general terms, I would support his release on

strict conditions. These would include

supervised accommodation and psychiatric

follow-up in competent hands."

16. We will discuss the substance of the matters raised by Dr Norris and Dr Lewin in considering the issue of unreasonableness. At this stage it is enough to note that these reports clearly raised the question of the effect (if any) of the orchidectomy upon the future sexual behaviour of Mr Renevier, a matter central to the issue of likely recidivism.

17. The comment has been made in earlier cases that, in providing procedural fairness, the decision-maker is not obliged to make the case for the applicant: see Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at p 170, Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167 at p 178 and Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at p 9. The obligation of procedural fairness was discussed by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at p 587 in these terms:

"However, this is not to say that fairness will

necessarily, or even generally, require that

an applicant for a further entry permit be

given an opportunity to be heard even where

deportation may follow from its refusal. The

grant of an entry permit is a matter of

discretion. Indeed, the cancellation of a

temporary entry permit is expressed to be a

matter of absolute discretion: s.7(1). In

the ordinary course of granting or refusing

entry permits there is no occasion for the

principles of natural justice to be called

into play. The applicant is entitled to

support his application by such information

and material as he thinks appropriate and he

cannot complain if the authorities reject his

application because they do not accept,

without further notice to him, what he puts

forward. But if in fact the decision-maker

intends to reject the application by reference

to some consideration personal to the

applicant on the basis of information obtained

from another source which has not been dealt

with by the applicant in his application there

may be a case for saying that procedural

fairness requires that he be given an

opportunity of responding to the matter: ..."

18. In the present case there is no question of Mr Renevier's application having been rejected by reference to a consideration personal to him which had not been dealt with by him in his application. Whilst he was in gaol Mr Renevier was interviewed on two separate occasions by officers of the Department of Immigration and Ethnic Affairs in connection with his position as a prohibited non-citizen. These interviews took place on 9 January 1985, shortly before the orchidectomy, and on 26 August 1987. On each occasion reference was made to his criminal record and medical condition. A note of the second interview was made by the interviewing officer, Mr Peter Hill. Under the question "Are there any other matters you wish to be taken into account?", Mr Hill wrote: "Wishes to emphasise that since operation has no sex drive (was given a course of injections for 1 mth. plus is still on medication - since operation) Cannot have an erection. Says pornographic videos sometimes shown in prison have no effect. Believes will never reoffend".

19. At the hearing before the primary Judge, Mr Renevier was cross-examined about this interview:

Q "Yes. All right, what I am interested in

is you told Mr Hill all these things

because you knew it was important to make

clear to him you would not do this again,

and would not offend again?"

A "Yes."

Q "You knew that was important?"

A "Yes."

Q "And you had the chance then to tell him

all those things?"

A "Yes."

Q "Because you had been warned earlier, had

not you, by officials from the

department. As long ago as 1977 you had

been convicted of an indecent assault on

a girl. Do you remember that?"

A "Yes."

Q "And you had been warned if you did it

again that you ran some risk of

deportation. Would that be right?"

A "That is right."

Q "You knew that that was something you had

to make very clear to the department that

you would not be doing it again, is that

right?"

A "That is right."

Q "Because of this operation and because of

these drugs?"

A "That is right."

20. Mrs Fogliani was also asked about her realisation of the position:

Q "Yes. Well, first of all, were you aware

that a big problem was to make sure he

did not commit another offence. Was that

a concern of yours?"

A "Yes."

Q "Secondly, is it also a concern to

convince the Department of Immigration,

and has it always been, in fact, that he

would not commit any more offences?"

A "Yes."

Q "Yes, is that right?"

A "Yes."

Q "All right. That is something you have

discussed with officers from the

Department of Immigration, is that

correct?"

A "In Sydney, yes, I think so."

21. In the light of these answers it seems to us that the complaint of denial of procedural fairness cannot be sustained. In fact, no material was put before the Department by or on behalf of Mr Renevier relating to his medical or pyschological condition or the relationship between the orchidectomy and the risk of recidivism. The reason for that omission does not appear in the evidence. It may be that Mr Renevier, and those advising him, thought that this would be unnecessary. The situation may not have been sufficiently considered. But whatever the reason, it was not because they were unaware of the relevance of these matters to the application.

22. It was submitted to the primary Judge that there was no evidence to support Mr Luu's finding of a real risk of recidivism. His Honour upheld that submission, which is repeated before us. The submission is not put as a separate ground of invalidity of Mr Luu's decision, but rather as an element in the argument that the decision was unreasonable. We think that the submission is correct. It is true that Mr Renevier had a bad criminal record, involving several serious sexual offences. But, since the last offence, he had had an operation which raised fundamental questions as to his future sexual behaviour. Notwithstanding that operation, it was relevant for Mr Luu to consider the risk of recidivism; but that risk had to be assessed in the light of the operation. So significant was the operation that it would be impossible reasonably to predict Mr Renevier's future behaviour by reference to his past conduct. The risk of recidivism needed to be determined upon the basis of medical and psychological advice.

23. When Mr Luu made his decision he had only two medical reports before him, those of Dr Norris and Dr Lewin. We have already referred to them. The report of Dr Norris was written very shortly after the operation and before the commencement of medication. It was already four years old when Mr Luu made his decision. The report was written by a person without any relevant specialist qualifications. But, even giving the report full weight, it does not support a finding of a real risk of recidivism. Dr Norris simply says that he does not know what the future will hold.

24. The salient parts of Dr Lewin's report have already been quoted. In large measure Dr Lewin relies on the opinions of others -- reasonably so, as he is a psychiatrist not an endocrinologist. Dr Lewin reports the view of Dr Calligeros that the operation would be likely to lead to a complete suppression of the production of testosterone, but that "such a reduction in hormone does not lead to a complete cessation of sexual behaviour in a predictable manner". (It is unclear whether this is intended to mean that it is not possible to predict whether there will be a complete cessation of sexual behaviour or that the non-production of testosterone does not lead to a complete cessation of predictable sexual behaviour.) Dr Lewin then goes on to refer to discussions with unidentified "senior colleagues" who are of the opinion that" a significant reduction in drive to re-offend can be expected". The qualification is added that "it is not possible to predict the future behaviour of an offender in such circumstances" and this qualification is relied on by counsel for the appellants as a justification for Mr Luu's finding of a "real risk" of recidivism. We do not think that it can be so regarded. It is the type of general disclaimer which one would expect of medical practitioners who are asked to comment, in general terms, about a patient whom they have not seen. At the very most these words represent an acknowledgement of the possibility of recidivism; they do not support the view that there was a real risk of it happening.

25. The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding. If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected. But where the finding is critical to the ultimate decision, it is impossible to sustain the decision. A number of suggestions have been made as to the way in which the resultant situation may be expressed: failure to take a relevant consideration into account, error of law, denial of natural justice, unreasonableness or taking into account an irrelevant consideration. The relevant cases were referred to by Davies J in Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (2 April 1989 unreported) and, more briefly, by a Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (28 June 1989 unreported).

26. The finding of Mr Luu that there was a "real risk" of recidivism by Mr Renevier was crucial to his decisions to refuse the application for a permanent entry permit and to make a deportation order. In arriving at that finding, Mr Luu did not claim any personal expertise in assessing the likely effect of such an operation as Mr Renevier underwent. He based himself entirely upon the two medical reports. Under such circumstances, the finding could only be rationally made if founded upon cogent evidence from a suitably qualified medical practitioner with knowledge of the facts. There was no such evidence.

27. However, the matter of unreasonableness does not stop there. There were two matters known to Mr Luu which made it unreasonable for him to make a decision adverse to Mr Renevier, at least on the material then available to him. In the first place, Mr Luu had before him a report by Ms S M Marlin, a probation and parole officer in the New South Wales Department of Corrective Services. This report, which was dated 27 January 1988 was apparently prepared in connection with the possibility of Mr Renevier being released on parole. In that report Ms Marlin referred to Dr Lewin's report, which she attached. Under the heading "Post Release Plans", she wrote:

"Mr Renevier stated that he wished to reside

with his sister and brother-in-law at 81

Gladstone Street, North Parramatta. When a

home visit was made both his sister and her

husband were emphatic that they would not have

Mr Renevier with them unless they had a

written undertaking from a psychiatrist that

similar offences would not occur again. They

have subsequently consulted with Dr Lewin and

will now have the inmate reside with them."

28. That passage strongly suggests that Dr Lewin had reassured Mr and Mrs Fogliani about the unlikelihood of future offences. If, contrary to our view, Dr Lewin's report was open to the interpretation that there was a real risk of recidivism, this passage ought to have alerted Mr Luu to the need to clarify the situation.

29. Secondly, Mr Luu was aware that, in releasing Mr Renevier on parole, the New South Wales authorities had required him to submit to supervision, not only by a parole officer, but also by a psychiatrist. Information from that psychiatrist as to Mr Renevier's progress since his release from prison in 1988 was plainly relevant to Mr Luu's finding, made in April 1989, as to the risk of recidivism. But apparently no effort was made to contact Dr Eckersley. Had the Department taken that course, Mr Luu would no doubt have been given the information which Dr Eckersley set out in a report, dated 14 June 1989, which he prepared for the benefit of the Queensland Corrective Services Commission. We have already quoted part of that report. It is desirable to set out the concluding paragraphs:

"Mr. Renevier is suffering the psychiatric

consequences of Congenital Adrenal Hyperplasia

causing excessive sexuality throughout his

life. Excessive quantities of hormones,

particularly the male hormone Testosterone

actually change the brain during it's (sic)

growth and development. A child normally has

very low levels of this hormone. High levels

lead to aggression, irritability, depression

and excessive sexual behaviour.

Since the time of surgical removal of the

testicles George reports a lessening to almost

zero in his sexual interest. Combined with

the drug Dexamethasone to suppress secretion

of sexual hormone from the Adrenal gland, his

sexual interest is totally removed, and he no

longer has erections at any time of the day or

night. He states he is pleased to have this

problem removed, and now finds it easy to live

a quiet life with his family. An interview

with his sister in September 1988 reinforces

the fact that Mr. Renevier's behaviour has

become completely quiet and predictable since

his operation in gaol.

Since released from gaol Mr. Renevier to my

knowledge has shown no tendency at all to

re-offend by either stealing or showing sexual

behaviour. With the loss of the excessive

levels of Testosterone which were causing his

psychiatric condition, his levels of

aggression are probably lower than normal for

a man. I believe there is little likelihood

of Mr. Renevier re-offending with regard to

sexual behaviour particularly if he continues

on his Dexamethasone suppression."

30. The primary Judge admitted into evidence a report written by Dr D A Perry-Keene, a Brisbane endrocrinologist. Dr Perry-Keene had not had an opportunity to examine Mr Renevier but he had studied the relevant documents, including the reports of Dr Norris, Dr Lewin and Dr Eckersley. He set out the following conclusions:

"By significantly reducing the male hormone

levels (and in the case of castration one

would expect a male residual androgen

production to be that similar to the low

levels seen in a female) one would expect a

major reduction in libido (sex drive) and

performance (potency). While male potency

(ability to achieve an erection) is not

totally obviated by castration, the overall

effects of depletion of androgen should be

very significant.

An aspect in Mr. Renevier's case, of course,

is the ability to produce androgen by the

adrenals which can be controlled chemically by

appropriate drug therapy, so compliance in

this aspect becomes important.

Providing drug therapy compliance can be

assured, the risk of disturbed sexuality, or

indeed normal male sexuality, can be expected

to be significantly reduced, though not

totally obviated. It is not possible to give

any scientifically based estimation of the

degree of reduction of risk of re-offence."

31. In Prasad at p 170 Wilcox J referred to "a case where it is obvious that material is readily available which is centrally relevant to the decision to be made". He suggested that, in such a case, "to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it". We note that Mason CJ in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 63 ALJR 561 at p 565 approached the question there litigated in a fashion which appears to be consistent with the approach in Prasad to which we have referred. The question in Chan was whether the finding that the appellant did not have a well-founded fear of persecution if he returned to China could be upheld. We read the following passage from Mason CJ as conveying the idea that, once a fear of persecution is shown to exist, it may be for the decision-maker to seek out for himself information suggesting that the ground for the fear has gone. His Honour remarked:

"While the question remains one for

determination at the time of the application

for refugee status, in the absence of facts

indicating a material change in the state of

affairs in the country of nationality, an

applicant should not be compelled to provide

justification for his continuing to possess a

fear which he has established was well-founded

at the time when he left the country of his

nationality. This is especially the case when

the applicant cannot, any more than a court

can, be expected to be acquainted with all the

changes in political circumstances which may

have occurred since his departure. Those

changes are a matter which, if they were to be

relied upon, needed to be established and

stated by the delegate in reasons."

32. The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the Administrative Decisions (Judicial Review) Act, may be related to the manner in which power is exercised. Unreasonableness, like each of the other grounds stated in s.5(2) of the Act is an example of the ground of review set out in s.5(1)(e), viz:

"(e)that the making of the decision was an

improper exercise of the power conferred

by the enactment in pursuance of which it

was purported to be made." (emphasis added).

33. One may say that the making of a particular decision was unreasonable -- and, therefore, an improper exercise of the power -- because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.

34. It seems to us that this is such a case. The question of recidivism was one of critical importance. It was one of some complexity, requiring the best possible medical advice; especially having regard to the importance of the decision to be made, both to Mr Renevier and his family and the Australian community. The medical material before Mr Luu was quite inadequate for the purpose of that decision, yet no attempt was made even to obtain a report from the psychiatrist known to be attending Mr Renevier, still less to obtain the opinion of a specialist endrocrinologist, such as Dr Perry-Keene. Had that course been taken, and yielded the information which was placed before the primary Judge, the conclusion could not rationally have been reached that there was a real risk of recidivism by Mr Renevier.

35. The order made by the primary Judge was that each of the decisions made by Mr Luu be quashed and that the matter be remitted to the second respondent, the Minister, to be considered according to law. We think that was appropriate. It will be for the Minister to consider the appropriate course to take. We emphasise that nothing which we have written is intended to suggest that the grant of permanent residence was necessarily called for at the time of Mr Luu's decision. Mr Renevier had been released on parole under carefully worked out conditions which were aimed at his rehabilitation. One condition was that he should live with his sister who could care and tend for him. Another condition was that he should have both parole and psychiatric supervision. One course, which was reasonably open to Mr Luu was to see how the parole worked out. Mr Luu could have deferred a final decision on permanent residence, perhaps granting a temporary entry permit in the meantime. It may be that, even now, that course will be appropriate; but that is for the Minister to determine.

Migration (Amendment) Act 1983

Decisions (Judicial Review) Act 1977

Migration (Amendment) Act 1983

Decisions (Judicial Review) Act 1977

Migration (Amendment) Act 1983

Decisions (Judicial Review) Act 1977

Migration (Amendment) Act 1983

Decisions (Judicial Review) Act 1977

Re Tuong Quang Luu v Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 518

At a glance

Court

Decision date

Source

Judgment (56 paragraphs)

Re Tuong Quang Luu v Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 518 (19 December 1989)

Parties

Legislation Cited (8)

Cases Cited (5)