Roesner v Minister for Immigration and Border Protection

Introduction 1 The primary issue is whether the primary judge erred by not finding that, in deciding to cancel the appellant's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act), the Minister fell into jurisdictional error by failing properly to consider the appellant's risk of re-offending. 2 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. 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 appellant, been sentenced to a term of imprisonment of 12 months or more is deemed to have such a record. The appellant did not contest that the criteria in paragraphs (a) and (b) of s 501(2) had not been satisfied in relation to him. 3 For the reasons which will follow shortly, we consider that the primary judge was correct to find that, in fact, the Minister did consider and make relevant findings concerning the appellant's risk of re-offending. We are also satisfied that no other appellable error has been established in relation to the primary judge's judgment and orders. Therefore, the appeal must be dismissed.

Summary of background matters 4 The appellant is a citizen of the Federal Republic of Germany, where he was born in 1941. He emigrated to Australia in 1960, when he was nineteen years old. He held a visa which permitted him to remain in Australia indefinitely. On 10 March 1972, the appellant married his second wife. They had two children, a daughter who was born in 1992 and a son who was born in 1994. 5 On 2 September 2002, the appellant pleaded guilty in the Supreme Court of Victoria to murdering his wife on 6 February 2002. He repeatedly struck her with a hammer while she was sleeping alongside their eight year old son. The boy woke up and witnessed some of the fatal blows being inflicted on his mother. He ran and fetched his sister, who witnessed the aftermath of the violent crime. The appellant was imprisoned for 16 years and given a non-parole period of 12.5 years (see R v Roesner [2002] VSC 384). 6 A notice of intention to consider cancellation of his visa was served on the appellant in September 2013. The appellant subsequently lodged various documents with the Department of Immigration and Border Protection (the Department). He was also interviewed by an officer of the Department. 7 On 6 August 2014, the Minister decided to cancel the appellant's visa under s 501(2) of the Act. The appellant was notified of that decision around 8 August 2014. The Minister provided the appellant with a statement of reasons for his cancellation decision. Those reasons may be summarised as follows (concentrating on matters which are relevant to the appeal). After satisfying himself that the appellant had a substantial criminal record and failed to pass the character test under s 501(6) of the Act, the Minister turned his mind to whether or not he should exercise the discretion under s 501(2) to cancel the appellant's visa. The Minister took into account the nature and seriousness of the appellant's offence, which he described as "very serious" and "abhorrent". The Minister also took into account that the appellant had no other criminal convictions, pleaded guilty to his wife's murder and had shown remorse. The appellant's conduct in prison, including his participation in rehabilitation and work activities, were also taken into account. 8 Because of their significance, it is desirable to set out the following passages from the Minister's statement of reasons which relate to the topic of the risk of the appellant re-offending. 9 In [16], the Minister stated: 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. 10 Then, in [17], after acknowledging that the murder was the appellant's only offence and that he had participated in rehabilitation and work while in prison, the Minister added: 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. (Emphasis added). 11 Later in his reasons, the Minister added the following comments in respect of the issue of the risk of the appellant re-offending: [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).

The primary judge's reasons for judgment summarised 12 In his amended application for judicial review of the Minister's decision, the appellant relied on six grounds of review, some of which overlapped. The alleged jurisdictional error which is of particular relevance to this appeal was that the Minister failed to make "an assessment of what the applicant's risk of re-offending was" and, consequently, failed to take into account a mandatory relevant consideration. 13 Another jurisdictional error which was raised by the appellant below was that the Minister failed to obtain a copy of a report dated 16 July 2002 by a forensic psychologist, Mr Ian Joblin. In that report, Mr Joblin opined that, at the time of the murder, the appellant was suffering from severe psychological stress and the report analysed the causes of that stress, which largely centred on the appellant's wife's decision to end the marriage. The report was taken into account by the sentencing judgment (see the reference to that matter in the extract from [16] of the Minister's statement of reasons which is set out in [9] above). It might also be noted that, in the Court below, Mr Joblin provided a second psychological report dated 9 December 2014. This report post-dated the Minister's decision. 14 Both these alleged jurisdictional errors were rejected by the primary judge (as were the other four grounds of judicial review). As to the first, after setting out the passages from the Minister's statement of reasons concerning the risk of re-offending, the primary judge found that, fairly read, the Minister had made a finding that the risk of the appellant re-offending was low. 15 At [16] of his Honour's reasons for judgment, the primary judge made the following findings and observations: 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. 16 At [20] of his reasons for judgment, the primary judge stated: In the present case the Minister had limited material before him to inform his assessment of the likelihood of the applicant re-offending. 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 re-offending 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). 17 It is unnecessary to describe in any detail why the primary judge rejected the second alleged jurisdictional error because the appellant did not press his second ground of appeal, which related to that matter. In short, however, the primary judge rejected the argument on the basis that the Minister was aware of the first report by Mr Joblin but there was nothing before him to make it obvious that the report contained critical factual material, nor was there anything to suggest that the report was readily available to him. If the appellant wished the Minister to give consideration to the full contents of the report, the primary judge stated that it was open to the appellant to provide a copy to the Minister. His Honour's statement is consistent with authority (see Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [30] per Edmonds, Flick and McKerracher JJ).

Determination of the appeal 18 The appellant's argument concerning the Minister's non-consideration of the risk of the appellant re-offending targeted each of [17], [33] and [34] of the Minister's statement of reasons. As to [17], the appellant contended that: (a) rather than making a finding as to the level of risk that the appellant would re-offend, in [17] the Minister merely made a hypothetical statement, which was said to be reflected in his use of the introductory phrase "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" (emphasis added); (b) at [17], after finding that certain facts may reduce the appellant's risk of re-offending, the Minister did not state what was the level of that risk; (c) at [33], the Minister found that the risk posed by the appellant was "unacceptable", but this finding was made without the Minister stating what the level of risk was nor what level of risk may or may not be acceptable; (d) at [34], the Minister stated that "even a low risk of further re-offending" was "unacceptable" because of the seriousness of the murder, but this again constituted a hypothetical finding that a low risk of further offending would be unacceptable yet the Minister made no finding that the risk was low; and (e) at [34], the Minister found that the appellant "still poses a risk of re-offending which I accept to be low", but this finding was described as "unintelligible and illogical". That was because, so it was submitted, the word "still" was used in a relative way to refer back to some earlier finding of risk which simply had not been made. Moreover, it was submitted that, by using the word "accept", the Minister was indicating that he "accepted" a submission from the appellant that the risk was low, but no such submission was ever made. Indeed, the appellant had proposed that it was "impossible" that he would re-offend. Accordingly the Minister's use of the term "accept" was "unintelligible". 19 We consider that no appellable error has been established in relation to the primary judge's rejection of the appellant's argument that the Minister failed to take into account a mandatory consideration, namely an assessment of his risk of re-offending. 20 We respectfully agree with the primary judge's approach that the Minister's statement of reasons are not to be read zealously in pursuit of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 and 291 and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [47] per Flick, Griffiths and Perry JJ (Ayoub)). In applying that approach, the primary judge found that, on a fair reading of the relevant passages in the Minister's statement of reasons, the Minister made a finding that the appellant's risk of re-offending was low. Any lingering doubt as to whether the language used by the Minister in [17] and [33] of his reasons, is removed by the terms of [34], where the Minister expressed his finding that the appellant "still poses a risk of re-offending which I accept to be low". 21 As the primary judge pointed out, some of the Minister's relevant reasons suffered from "some infelicitous expression", but, on a fair reading, the Minister's statement of reasons disclose that he had made a finding that the appellant's risk of re-offending was low. That finding is clearly expressed in [34] of the reasons and is further supported by what appears in [17] and [33]. 22 There is some tension in the case law concerning the question whether or not the risk of re-offending constitutes a mandatory relevant consideration in all cases involving the Minister's discretion under s 501(2) (see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505, Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346, Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, Te Puke v Minister for Immigration and Border Protection [2015] FCA 398, Ayoub, where the issue is discussed at [33]-[49] and, most recently, Berryman v Minister for Immigration and Border Protection [2015] FCA 616 (Berryman)). 23 It is unnecessary to resolve that tension in circumstances where, irrespective of whether such a matter constitutes a mandatory relevant consideration, for reasons we have given above, no appellable error has been established in respect of the primary judge's conclusion that the Minister did in fact consider this matter and then concluded that there was a low risk of the appellant re-offending. This finding was accompanied by another finding by the Minister that great harm was attached to this low risk, which represented an unacceptable risk of harm to the Australian community. Accordingly, whether or not an assessment as to the risk of re-offending is a mandatory consideration, the outcome in the current appeal would remain the same because that consideration was in fact assessed and determined by the Minister. 24 In her oral address in the appeal, Ms Costello, who appeared for the appellant, contended that the primary judge erred in not finding that the Minister had failed to give "proper, genuine and realistic consideration" to the risk of the appellant re-offending and also that the Minister's decision was unreasonable in the relevant legal sense (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 232 (Li)). Ms Costello further contended that on the material which was before the Minister, it was not open to the Minister to find that there was a low risk of the appellant re-offending. 25 Although there is some doubt whether these contentions were put in these terms below, we are satisfied that they fall within the scope of the appellant's judicial review application. It is convenient to deal with these three contentions together. Each of them requires close attention to be given to the information which was before the Minister when he made his decision, including the nature and extent of any information provided by the appellant himself concerning the Minister's power under s 501(2). 26 By its letter dated 11 September 2013, the Department wrote to the appellant (who was then incarcerated in Port Phillip Prison) and advised him that consideration would be given to cancelling his visa under s 501(2) of the Act on the ground that he had a "substantial criminal record" within the meaning of that provision. The appellant was informed that, before any Ministerial decision was made, he would have "the opportunity to comment on the information that will be considered by the decision-maker and to submit extra information if you wish". The letter included information about legal aid assistance in Victoria. It also advised the appellant that the relevant information which would be considered by the Minister included the sentencing remarks of Teague J in the Supreme Court of Victoria on 9 September 2002. A copy of those remarks was included in the attachments to the letter. Another enclosure was a copy of a letter dated 22 May 2013 which the appellant had written to the Department in which he stated that he wanted to remain in Australia after he was released from prison, the earliest release date being 2 August 2014. The appellant was informed that he had 28 days to respond to the Department's letter. 27 The appellant sent four letters in response. The first, dated 3 October 2013, referred to the fact that the appellant was awaiting a consultation with Victorian Legal Aid and was also scheduled to have some surgery. He sought an extension of time to respond to the Department's letter. His request was granted and he was given until 22 November 2013 to provide any comments and additional information which he wanted the Minister to take into account. 28 The appellant's second letter, which was dated 15 October 2013, acknowledged the extension of time, and enclosed two character references, one of which included an offer of full-time employment upon his release. The appellant also made submissions concerning his relationship with his children and his desire "to grow old with my children by staying in Australia". Nothing was said in the letter concerning the risk of the appellant re-offending. 29 The appellant's third letter, which was dated 4 January 2014, took the form of a short handwritten annotation which was added to his earlier letter dated 3 October 2013. His handwritten note recorded that he had asked a third party to verify that, upon the appellant's release from prison, a third party wanted to employ him. 30 The appellant's fourth letter, dated 3 February 2014, confirmed that earlier handwritten note. 31 It is notable that none of these letters directly addressed the topic of the risk of the appellant re-offending. 32 The appellant was interviewed by a Departmental officer on 6 May 2014. The Department's interview notes of that interview (which were in evidence below) indicate that the appellant was asked various questions, including on the topic of the likelihood of him re-offending and whether there had been any formal assessment of that risk. The interview notes contain the following information on those matters: 1. What do you think is the likelihood that you may re-offend? Please give reasons for your answer. • It is impossible that he will re-offend • Hermann's offending occurred only after pressure had built up over time, which caused him to lose his head and do something stupid • His age means he will not get into that situation again 3. (sic) Have you been formally assessed re risk of re-offending (VISAT or similar) • Herman has no recollection of this, if it happened 33 The Department's interview notes also record that a copy of the notes would be given to the appellant and that he would have fourteen days to comment on them. Evidently, no further comments were provided by him. 34 The Department provided a detailed brief to the Minister to assist him in deciding whether or not he should exercise his power under s 501(2). The Departmental brief included a copy of all the information which was provided to the appellant under cover of the Department's letter dated 11 September 2013, as well as copies of all of the appellant's letters as described above and a copy of the Department's interview notes. The brief also included a detailed issues paper which had been prepared by the Department and which sought to identify the issues which needed to be considered under s 501(2). The issues paper included a detailed analysis under the heading "Mitigating factors and risk of re-offending", which concluded with the following observations at [46]: The available evidence suggests that Mr ROESNER has recently undertaken one relevant course of rehabilitation, he will have accommodation and paid employment available to him immediately upon release from gaol, and he will have a limited level of community support. It is open to you to consider that this is likely to assist his reintegration into the community and may assist to reduce his risk of re-offending. As noted above, he has no prior criminal history. Notwithstanding these factors, Mr ROESNER's ability to refrain from offending in the community is untested and it is open to you to find that he poses an ongoing risk of re-offending, albeit that it is a low risk. 35 As noted above, it was open to the appellant to obtain an updated report from a psychologist concerning the risk of him re-offending but he did not do so prior to the Minister deciding to cancel his visa (in fact the appellant subsequently obtained an updated report from Mr Joblin but his attempt to tender that report in the Court below was unsuccessful on the ground that the updated report was irrelevant in the judicial review proceeding because the report was not before the Minister when he made his decision). 36 Against that background, Ms Costello's oral contentions as outlined in [24] above must be rejected. First, we do not accept that the Minister failed to give "proper, genuine and realistic" consideration to the risk of the appellant re-offending. As has been recognised, that epithet carries a real risk of drawing a judicial review court into an impermissible review of the merits of a decision (see, for example, Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten JA (with whom Allsop P agreed), and Ayoub at [24]). That is not to say, however, that the epithet is to be entirely avoided (see, for example, NBMZ v Minister for Immigration and Border Protection [2011] FCAFC 38 at [24]-[27] per Allsop CJ and Katzmann J). Whether or not "proper, genuine and realistic consideration" has been given to a particular consideration requires close attention to be paid to such matters as the terms of any relevant statement of reasons, the nature and extent of the material which was before the primary decision-maker and the nature and extent of any submissions or information provided by the aggrieved person. 37 In the particular circumstances here, it is notable that the issue of the risk of the appellant re-offending was the subject of various paragraphs in the Minister's statement of reasons. They are set out in [9] to [11] above. It should also be noted that in [31] of the Minister's statement of reasons (which forms part of the final section of the Minister's statement of reasons under the heading "Conclusion"), the Minister stated: I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr ROESNER. 38 In addition, in [36] of his statement of reasons, the Minister said: Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr ROESNER's Class BF Transitional (Permanent) visa under s 501(2). 39 Jurisdictional error is likely to be established if it can be demonstrated, for example, that the Minister has simply applied a policy that a visa held by any person whom the Minister reasonably suspects does not pass the character test will always be cancelled. However, that is not the case here. The material which we have outlined above adequately indicates that the Minister did give proper, genuine and realistic consideration to the appellant's individual circumstances, including on the specific issue of the risk of him re-offending. That consideration included taking into account (but not accepting) the appellant's own statements concerning that risk. The Minister was entitled to reason as he did and to find the facts as he did. 40 Each case will necessarily depend upon its own particular facts and circumstances. It is appropriate in that context to record that the Minister's statement of reasons will invariably play an important role in determining whether or not the individual circumstances of a particular visa holder have "properly" been considered in the legal sense. As noted above, such reasons need to be read and construed in a common-sense and balanced manner. We also agree, however, with the following recent observations of Flick J in Berryman at [24]: … And particular care must also be taken not to apply uncritically any form of words used by a Minister in providing his reasons for decision in different cases. No course should be encouraged whereby Ministers are encouraged to use any particular form of words in their statement of reasons simply because that form of words has received "approval" in previous decisions which have come under judicial scrutiny. Ministers should only be encouraged to express their reasons for decision in a form of words which they individually consider expresses their own reasons for that particular decision. Counsel for Mr Berryman quite properly shunned any course whereby the Minister could provide "formulaic" reasons for decisions simply because that formula has previously survived judicial scrutiny. 41 Having regard to the materials which were before the Minister, the contention that it was not reasonably open to the Minister to find that there was a low risk of the appellant re-offending must be rejected. Moreover, those materials, together with the Minister's statement of reasons, demonstrate that there is no substance in the related contention that the Minister's decision to cancel the appellant's visa was unreasonable in the legal sense (see Li). The Minister's decision was not irrational nor lacking in an intelligible justification.

Conclusion 42 The appeal should be dismissed and the appellant ordered to pay the costs of the respondent as agreed or assessed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, and Justices Flick and Griffiths.