Roesner v Minister for Immigration and Border Protection

JUDGE: TRACEY J DATE: 13 february 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is a citizen of the Federal Republic of Germany. He was born in that country in 1941 and came to Australia, as a 19 year old, in 1960. At relevant times he was the holder of a Class BF Transitional (Permanent) visa. Such a visa permitted him to remain in Australia indefinitely. 2 In 2002 the applicant murdered his wife. As she slept he struck her with a hammer. He landed about 10 blows to her head. Their eight year old son was present and observed some of the blows being inflicted and their daughter came on the dreadful scene shortly afterwards. 3 The applicant pleaded guilty to murder and was sentenced, in the Victorian Supreme Court, by Teague J to be imprisoned for 16 years. A non-parole period of 12 ½ years was fixed: see R v Roesner [2002] VSC 384. 4 In September 2013, while the applicant was still serving his sentence of imprisonment, a departmental officer caused a Notice of Intention to Consider Cancellation of Visa to be served on the applicant. The notice advised him that consideration was being given to the cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). He was invited to provide information and submissions about whether the cancellation power should be exercised. The applicant responded to this request by lodging documents and written submissions in which he urged the decision maker not to cancel his visa. 5 A departmental submission was then prepared for the personal consideration of the Minister. On 6 August 2014 the Minister determined to cancel the applicant's visa under s 501(2) of the Act. He gave written reasons for his decision: see s 501G(1). 6 The applicant has applied to the Court for judicial review of the Minister's decision. 7 Section 501(2) of the Act provides: "(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." 8 The "character test" is defined in s 501(6). Relevantly, it provides that a person does not pass the test if the person has a "substantial criminal record". That term is defined in s 501(7). A person who has, like the applicant, been sentenced to a term of imprisonment of 12 months or more is deemed to have such a record. The applicant did not seek to contend that the criteria established by paragraphs (a) and (b) of s 501(2) had not been satisfied. 9 The applicant's case was that the exercise of the Minister's discretion had miscarried for a number of reasons. 10 The grounds relied on were that the Minister had erred by: Failing to take into account a mandatory consideration, namely, the making of "an assessment of what the applicant's risk of reoffending was" (Ground 1). Assessing the risk of the applicant reoffending by reference to "an unspecified earlier risk without disclosing what that earlier risk was" (Ground 2). Failing to obtain a copy of a psychological report which had been considered by Teague J when sentencing the applicant (Ground 3). Using his discretion to "punish" the applicant (Ground 4). Failing to take into account all relevant information thereby denying the applicant natural justice (Ground 5). As will be seen there is a degree of overlap between some of these grounds. 11 There was also an allegation of apprehended bias on the part of the Minister (Ground 6).

THE RISK OF REOFFENDING 12 It will be convenient to consider Grounds 1 and 2 together. On one view they may be thought to be mutually inconsistent but they arise out of the same passages of the Minister's reasons. The first reference to the risk of the applicant reoffending appears in the section of the Minister's reasons which is headed "Mitigating factors and risk of re-offending." The Minister said (at [16]) that: "The department was unable to obtain any formal assessment of Mr ROESNER's risk of re-offending. Mr ROESNER has described his offending as 'one moment' of losing control, and submitted that such conduct was completely uncharacteristic of him. In sentencing Mr ROESNER, the court considered his psychological state at the time of the murder. His Honour substantially accepted an assessment that Mr ROESNER was suffering 'severe psychological distress'. Mr ROESNER submitted that his offending occurred only after pressure had built up over time and that his age means he will not find himself in this position again." (Emphasis in original). 13 At the end of that section the Minister acknowledged that the applicant had not committed any offences prior to or since the murder, had participated in rehabilitation and work in prison, had behaved in an acceptable manner during his incarceration and had community support. He continued (at [17]): "However, Mr ROESNER's ability to refrain from re-offending in the community is untested. If Mr ROESNER were to re-offend by committing a serious, violent offence, the consequences of his offending are likely to be grave. Even if the risk of re-offending posed by Mr ROESNER is low, I found that great harm is attached to this low risk, should he re-offend." 14 The Minister returned to this issue in the concluding section of his reasons. He said that: "33. I formed the view that Mr ROESNER poses an unacceptable risk of harm to the Australian community. He brutally killed his victim and caused his young children extreme trauma. I found that the Australian community could be exposed to great harm should Mr ROESNER reoffend in a similar fashion. If Mr ROESNER were to re-offend by committing further, serious, violent offences, the effect upon his victim or victims could be grave. 34. I found that Mr ROESNER still poses a risk of re-offending which I accept to be low. While I accept that Mr ROESNER has participated in rehabilitation and other activities to reduce his risk of re-offending, the seriousness of his offending, and the harm that would be caused if it were to be repeated, makes even a low risk of further offending unacceptable. The Australian community should not tolerate any further risk of such harm." (Emphasis added). 15 The applicant contended that the Minister was bound to assess the risk posed by the applicant to the Australian community were he to remain in the country. This, he said, the Minister had failed to do. The failure was apparent from the reasons given by the Minister for his decision. 16 The relevant parts of the reasons suffer from some infelicitous expression. In particular, it is not clear whether the Minister made a finding that the risk of the applicant reoffending is low and if so, upon what basis. The final sentence of [17] which commences with the words "Even if" appear to posit a hypothetical possibility that the applicant's risk of reoffending is low. The opening words of [34] appear to be somewhat more definite: the Minister there accepts that the risk is "low". This understanding is reinforced, later in the paragraph, where the Minister says that "even a low risk of further offending" is unacceptable. A difficulty, however, arises because of the use of the word "still" in the first line. On one reading this may suggest that a risk of reoffending has existed in the past despite there having only been one prior offence and there not having been any previous risk assessment. A fair reading of the Minister's reasons in context suggests, however, in my view, that "still" is used in the sense of "nonetheless" and does not tend against a conclusion that a risk assessment of 'low' was made. 17 The Minister's reasons are not to be read zealously in pursuit of error. They are not expressed with the precision one would expect in a legal document. I think that, on a fair reading of the quoted paragraphs, the Minister may be understood to have made a finding that the risk of the applicant reoffending is low. That assessment, in the absence of any history of recidivism and any formal assessment of the risk by a psychologist or other professional, can only have been based on the gravity of the applicant's offending, the circumstances in which he committed the murder and the traumatic impact of his conduct on his then infant children. 18 The applicant argued that the Minister was required to do more. He placed particular reliance on the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673. Her Honour there held that, in considering the exercise of his discretion under s 501(2) of the Act, the Minister was required to evaluate the seriousness of any future harm and the likelihood of that risk materialising: see at [153]. Her Honour then concluded that: "154. The risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using 'protection' in its broadest sense. 155. In turn, a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring." 19 Her Honour found (at [157]) that the Minister had failed to take into account the risk of harm posed to the Australian community by Mr Tanielu. More specifically she found that the Minister had erred by failing to undertake any "evaluation at all of how likely it was the applicant would engage in such conduct again". Nor had the Minister said "that he considered even the smallest of risks to be enough given how serious the future harm would be." Instead, he had asserted "'potential' risk as a conclusion": at [156] and see also at [109] and [112]. 20 In the present case the Minister had limited material before him to inform his assessment of the likelihood of the applicant reoffending. This was not a case where, for example, the applicant had a history of recidivism, had failed to heed warnings or had refused to participate in rehabilitation programmes: cf Moana v Minister for Immigration and Border Protection [2014] FCA 1084 at [18] (Davies J). Nor did the Minister have available to him any recent professional assessments of the applicant's mental condition. Despite the paucity of the material before him the Minister did not fall into the same error as his predecessor had done in Tanielu. He did undertake an evaluation of the likelihood of the applicant again committing a serious criminal offence. So much is evident from the passages of his reasons at [17], [33] and [34] (quoted above at [13] and [14]). In substance the Minister reasoned that, although the risk of the applicant reoffending was low, even such a low risk was unacceptable given the magnitude of the harm which would be occasioned by any repetition of the applicant's violent conduct. He was not obliged to attempt a more precise quantification of the risk: cf Coderre v Minister for Immigration and Border Protection [2014] FCA 769 at [36] (Besanko J). 21 It follows that, even if the Minister was bound to make an assessment of the risk of the applicant reoffending, he had done so. I say "even if" because there is on-going debate as to whether, in exercising his discretion under s 501 of the Act, the Minister is bound to have regard to such a consideration in all cases. There is a good deal of authority that contemplates that it is open to the Minister to take the view, in the public interest, that some criminal offences are so serious that cancellation of the offender's visa will be justified without more: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 (Gaudron J); Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 352; Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523. It cannot be doubted that the murder of a victim of domestic violence falls amongst the most serious offences known to the criminal law. 22 This ground must be rejected.

the psychological report 23 At the sentencing hearing in the Supreme Court counsel for the applicant relied on a report prepared by a forensic psychologist, Mr Ian Joblin. The report was dated 16 July 2002. Mr Joblin had expressed the opinion that, at the time of the murder, the applicant was suffering from severe psychological distress. Most of the report was directed to explaining the causes of that distress. They centred on the applicant's wife's decision to leave the matrimonial home and the circumstances in which she advised the applicant of her decision. Two paragraphs of the sentencing judge's remarks were devoted to a summary of Mr Joblin's report and an assessment of it. These passages were quoted in a departmental submission which was considered by the Minister when making his decision. A full version of the sentencing remarks were attached to the reasons and were also considered by the Minister. As a result the Minister was aware, at the time at which he made his decision, of the existence of Mr Joblin's report. He did not, however, have a copy of the report before him. Nor did he seek to obtain one. This failure was said to give rise to jurisdictional error on the part of the Minister. 24 The applicant relied on the dictum of Black CJ in Tickner v Bropho (1993) 40 FCR 183 at 199 that a Minister would act unreasonably (in the sense used in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) were the Minister to exercise statutory power without obtaining and considering "up to date information about a matter which went directly to the fundamental basis" for the Minister's decision when that material "was readily available to him for the asking." 25 Although Mr Joblin's report was not before the Minister it was tendered by the applicant without objection by the Minister. I assume that this occurred because it was considered appropriate that the passages from the report which were quoted by the sentencing judge should be understood in context. 26 The applicant submitted that the passages of Mr Joblin's report which were summarised in the sentencing judge's reasons and which were considered by the Minister had a bearing on the Minister's assessment of the likelihood of the applicant reoffending. This is a matter to which I will return in the context of Ground 5. In addition the applicant directed attention to Mr Joblin's assessment that: "He [the applicant] is aware of the extraordinary power of emotion and recognises that it should never reach that level again. I seriously doubt that such a combination of factors that created the psychological state involved in this incident will ever occur again. Certainly given that as the only motive for the offending, one is left with the possibility of an optimistic prognosis for Mr Roesner in terms of an absence of any antisocial behaviour in the future." No reference was made to this assessment in any material which was placed before the Minister. 27 The circumstances in which a decision maker is required, by law, to obtain information, additional to that placed before him or her by persons involved in the decision making process, are relatively rare. The relevant authorities were summarised recently by the Full Court in Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [30]: "For present purposes it may be accepted that there are circumstances in which an administrative decision-maker may be required to undertake inquiries: cf. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50-51 per Davies, Wilcox and Pincus JJ. A "failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained", it has been accepted, "…could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review": Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], 259 ALR 429 at 436 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. But it is no part of a decision-maker's function to make out a case for an applicant: Commissioner of Taxation v Glennan [1999] FCA 297 at [82], 90 FCR 538 at 558 per Hill, Sackville and Hely JJ." See also: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 434-436. 28 The applicant has not identified any critical fact which could easily be ascertained by a reading of Mr Joblin's full report. The parts of the report to which attention was directed dealt with the circumstances in which the murder occurred and concluded with a guarded prognosis based on the assumption that it was highly unlikely that the applicant would ever again be faced with the same combination of events which occasioned his offending. The Minister was aware of the existence of the report. There was nothing before him, at the time at which he was considering his decision, to make it obvious to him that the report contained critical factual material which was likely to have a material bearing on his decision. Nor was there anything to suggest that the report was readily available to him. Had the applicant wished the Minister to take the report into account he could have so requested. He did not. It is also to be borne in mind that the report had been prepared some 12 years earlier and for a different purpose. It was hardly the type of document which the Minister should have been expected to appreciate would contain current facts of central relevance to his task at hand. 29 This ground must fail.

PUNISHMENT 30 This ground was but faintly pressed. It must be rejected. 31 It may readily be accepted that the Minister would err were he to cancel a visa under s 501 of the Act in order to punish a non-citizen who had committed a crime: cf NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at 8 (Allsop CJ and Katzmann J). 32 Counsel for the applicant did not, however, seek to identify any observations by the Minister in his reasons which were even vaguely suggestive of such an impermissible approach. None is to be found.

FAILURE TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS 33 In his amended grounds of application the applicant alleged that the Minister had failed to take into account "all relevant information" when making his decision and that this failure had given rise to a denial of natural justice. 34 The particular information which, it was said, had not been taken into account was: Mr Joblin's report upon which the sentencing judge relied. The psychological state of the applicant at the time of the offence. The applicant's claim that it was impossible he would reoffend. The circumstances in which the offence occurred had changed so drastically that they could not be repeated. The applicant was estranged from the only one of his siblings who still lived in Germany. The potential detrimental financial impact on the applicant's adult children of the applicant's exclusion from Australia. The potential detrimental emotional impact on the applicant's adult children whose opportunity to rebuild a relationship with the applicant following his release from prison would be impacted if the applicant was excluded from Australia. The Parole Board was due to assess the applicant's suitability for parole. The applicant had spent 12 years in jail and was not a suitable vehicle for specific deterrence. The applicant was not a suitable vehicle for specific deterrence given the circumstances of the offence. As can be seen this information, which it is said the Minister failed to take into account, comprises a mixture of fact, assertion and opinion. 35 Such failures (if there be any) will only give rise to reviewable error if the Minister was bound to have regard to one or more of these matters and had failed to do so: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40. Just because one or more of these matters might have been of potential relevance to the decision making process does not mean that the Minister was obliged to have regard to them. The consideration which the Minister was required to take into account (at best for the applicant) was the protection of the Australian community: see Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [20]-[21]. Each of the matters particularised were pieces of evidence rather than mandatory considerations: cf Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 at 472-3 (Merkel J). Furthermore, the failure to mention one or more of these matters in the Minister's reasons for decision cannot, inevitably, lead to the conclusion that he did not have regard to them when reaching his decision: cf Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 423 (Allsop J, with whom Heerey J agreed). 36 It is not necessary to pursue these legal issues further because I am not satisfied that the matters identified by the applicant were not taken into account by the Minister. 37 At the end of the departmental submission there was a declaration, endorsed by the Minister, that he had considered "all evidence before [him] provided by, on behalf of, or in relation to, [the applicant]." This declaration was repeated by the Minister in his reasons at [31]. The applicant did not seek to submit that these declarations should not be treated by the Court as other than truthful. 38 Mr Joblin's report cannot, itself, be regarded as a relevant consideration. It contained information about the applicant's psychological condition at the time at which he murdered his wife. The report, to the extent to which it dealt with these issues, was summarised by the trial judge in his sentencing remarks and that summary was available to and considered by the Minister. No complaint was made about the accuracy of the summary. 39 That part of the report which is quoted above at [26] was not before the Minister. Mr Joblin expressed serious doubt that the combination of factors which gave rise to the applicant's state of mind at the time of the offence would ever recur. This was said to support the applicant's claim that it was impossible that he would reoffend. It is both logical and unlikely that the precise combination of events which coalesced in 2002 would recur. For that to happen it would require the applicant to remarry, have children and for his new wife to announce that she was leaving him and taking the children in circumstances in which he regarded as demeaning. The unlikelihood of a repetition of these events does not of itself necessarily negative the possibility that the applicant might reoffend. Mr Joblin does not, for example, canvass the possibility that, if exposed to other stressors in a fraught environment, the applicant might react violently against the person or persons whom he blamed for his predicament. This was a possibility which the Minister may be taken to have addressed when considering the risk that the applicant might again commit violent acts and the effect of such violence on the victims. 40 It is also to be noted that the applicant's assertion that it would be "impossible" that he would reoffend was considered by the Minister. It was drawn to his attention in the departmental submission, appears in a record of interview which was before the Minister and the Minister, in his reasons, specifically acknowledged the applicant's submission "that his offending occurred only after pressure had built up over time and that his age means he will not find himself in this position again." 41 The departmental submission advised the Minister that the applicant was estranged from his sister who lived in Germany. He was further advised that the sister was not in a position to accommodate or support the applicant. 42 The emotional and financial circumstances of the applicant's children were specifically dealt with by the Minister in his reasons for decision. He found (at [24]) that the applicant had indicated his willingness to assist them financially "for as long as they require it". He also found (at [25]) that the children had not had contact with the applicant for about 10 years and that there was nothing in the material to suggest to him (the Minister) that they would suffer emotional harm in the event that the applicant's visa was cancelled. 43 The departmental submission advised the Minister that the earliest parole release date for the applicant was 2 August 2014. It was recommended that the Minister make his decision prior to that date. In the event he made it four days later. At the time at which the decision was made the Minister had not been advised of any date on which the Parole Board proposed to consider the applicant's release. 44 There is nothing in the Minister's reasons which suggest that he determined to cancel the applicant's visa in order to deter the applicant from committing further offences. There was, as a result, no occasion for the Minister to make a judgment about whether the applicant was a "suitable vehicle" for such deterrence. 45 It follows that the applicant's claim of failure to have regard to relevant information lacks substance. 46 I would add that the allegation that such failures gave rise to a denial of natural justice also lacks substance. It is founded on advice given to the applicant by the department in the notice which it gave him of its intention to consider cancellation of his visa. In the covering letter the applicant was advised that: "The decision-maker will take all relevant available information into account when making the decision about your visa." Even if it be assumed that a failure to honour this undertaking would constitute a denial of natural justice (which must be regarded as a dubious proposition) the Minister, as has been seen, did take "all relevant available information" into account in reaching his decision.

APPREHENDED BIAS 47 The principal basis for the allegation of apprehended bias on the part of the Minister was said to be certain public pronouncements by the Minister which were "well documented in Fraser v Minister for Immigration and Border Protection." That decision was handed down by Perram J on 9 December 2014: see [2014] FCA 1333. At [31]-[33] his Honour referred to and quoted from a number of statements made by the Minister in which he had made comments about taking a strong stance when considering the cancellation of visas held by persons convicted of criminal offences in Australia. 48 It is not necessary to refer, in more detail, to the Minister's comments. This is because Perram J held (at [35]) that he was bound by the decision in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 to hold that the comments could not give rise to an apprehension of bias in the legal sense. I too am so bound. 49 This ground must also be rejected.

DISPOSITION 50 The application must be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.