RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

GROUND 2 35 On ground 2, the applicant contends that the Tribunal misconstrued or misapplied [9.1.2(2)(a)] of Direction No. 79 which requires a decision-maker to have regard to: … the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. 36 It is clear that non-compliance by a Tribunal with a Direction made under s 499 of the Migration Act can constitute jurisdictional error, as noted by Mortimer J in PQSM v Minister for Home Affairs [2020] FCAFC 125 (at [37]), with whom Banks-Smith and Jackson JJ agreed on that point (at [90]). This ground turns on whether the Tribunal was permitted to speculate or as the applicant put it, 'catastrophize' about the nature of the harm that could be caused by the applicant reoffending or whether it was required to limit its assessment to the nature of the harm that would most likely be caused by the applicant reoffending. 37 For the applicant it is contended that the context in which [9.1.2(2)(a)] appears supports the inference that the Tribunal's task was to assess the nature of the harm that would be caused, rather than the nature of the harm that could be caused by the applicant reoffending. That context includes: (a) the reference in [9.1.2(1)] to 'the harm that would be caused if [the conduct] were to be repeated'; and the reference in [6.3(4)] (which informs the taking into account of all considerations) to the 'harm that would be caused if [the conduct] were to be repeated'; (b) the requirements under [8(2)] and [9.1.2(2)(b)] that the Tribunal have regard to 'information' and 'evidence' from independent and authoritative sources in assessing the likelihood of an applicant reoffending. The applicant says this supports an inference that the assessment of the risk to the Australian community should be evidence-based and logical rather than an exercise in speculation. This would necessarily require the assessment of the nature of the harm to be evidence-based and logical rather than speculative; and (c) the inherently implausible proposition that it was the intent of the Minister in issuing Direction No 79 to direct decision-makers to assess the risk to the Australian community by, in part, speculating about remote possibilities of harm. 38 The applicant says that the Tribunal has assessed the nature of the harm that could be caused by the applicant reoffending in its assessment set out at [118]-[121] (quoted above at [11]-[12]). At the first part of this passage, the Tribunal repeatedly made findings about the nature of the harm that could be caused if the applicant reoffended. At no point did it make any findings about the nature of the harm that would likely be caused if he reoffended. It then concluded (at [121]) by finding that the nature of the harm was 'very serious and includes physical, psychological and emotional harm to children and a risk of physical injury or death to members of the public through motor vehicle accidents'; this finding compiling its earlier findings (at [118]-[120]) about what the nature of the harm could be. The Tribunal in concluding its findings about the first primary consideration (at [142]) stated that the 'nature of the harm that could result … could be very serious'. 39 The error in this approach, according to the applicant, is that the Tribunal's finding about the nature of the harm that could be caused by the applicant reoffending were completely disconnected from any of the evidence before it such that it was an exercise in speculation. There was no reference to any harm caused by the applicant to date (the applicant contends that his particular offences have caused little or no harm) and the Tribunal accepted (at [99]) that there was no trend of increasing seriousness in the applicant's offending. Indeed, the applicant says the opposite was plainly true. 40 Although the Tribunal considered the applicant's offending to be very serious, that seriousness is said not to derive from the harm that was actually caused by his offending. The applicant says there is no basis in the evidence to assert that the applicant has previously caused harm of the nature described by the Tribunal (at [121]) and accordingly, there was no basis in evidence to suggest that any of these outcomes might eventuate if the applicant were to reoffend. The applicant says that the Tribunal's approach was incongruous. On the one hand, it relied upon the applicant's criminal history to infer that there was a likelihood of reoffending. On the other, when it came to the nature of harm should he reoffend, the Tribunal has ignored the fact that the applicant's offending to date has resulted, he says, in limited, if any, harm. 41 In considering the Tribunal's assessment under [9.1.2(2)] of the Direction No. 79, it is important to appreciate that the Tribunal is required to reach a conclusion on the nature of harm to the Australian community having regard to the likelihood of any harm occurring and the seriousness of that harm if it did occur. The Tribunal recognised as much when it said (at [111]): In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [94]-[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [42]-[43]): An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does. [Footnotes omitted.] 42 It can be seen then that the process required in carrying out compliance with the Direction necessarily involves a degree of speculation or estimation as the Tribunal is required to consider a hypothetical future. The assumption is to be based on an applicant continuing offending. 43 The Applicant's true complaint is that there was no proper basis to assume any harm at all given that his offending, he says, had caused little or no harm. This contention, with respect, ignores the detailed consideration that the Tribunal gave to the nature of the applicant's offences (at [53]-[64]) and fails to have regard to the reasons of the Tribunal as a whole. At [54], the Tribunal records the applicant's conduct that constituted the indecent dealing offence: The circumstances of the offence are outlined in the Western Australia Police Statement of Material Facts for the offence which indicates that, at some time between 1 March 2006 and 30 June 2006, the Applicant asked his partner's daughter to go for a drive with him to the river. The child did not wish to go but the Applicant told her to get in the car. They drove to the river crossing in [Town C]. The Applicant asked the child to take off her clothes, so that she could have a swim, but she declined. The Applicant then reached over and put his hand up the child's skirt and rubbed the top of her thigh. The victim pushed his hand away, but the Applicant again put his hand under her skirt and rubbed the top of her thigh area again. However, he stopped when the victim indicated that she would tell her mother. The Applicant had been in a de facto relationship with the victim's mother for seven years. (Citations omitted.) 44 Similarly, in relation to the child pornography offences, the Tribunal records the relevant conduct (at [57]-[58]) as follows: 57. The facts of those offences are set out in the Sentencing Remarks of Wager DCJ, and the Western Australia Police Statement of Material Facts. According to this material, on 7 May 2007, the Applicant made contact, via the Internet, with an undercover police officer in Queensland ("James"), who was using a persona. They maintained an Internet chat conversation for several days, and, on 11 May 2017, the Applicant sent the police operative 11 images of children in a naked state, in various sexual poses with each other and men. The Applicant also sent the operative a non-sexual image of his de facto stepdaughter. The Sentencing Judge noted that this image had been sent to the persona who had disclosed to the Applicant "predatory and repugnant conduct" including with respect to her (the persona's) own daughters. 58. On 17 May 2007, computers in the Applicant's possession were seized under warrant by police. On those devices police located: • 797 images of naked children, in various sexual positions with adults and each other; • 10 videos of children involved in sexual activity with adults and each other; and • three sexually explicit stories relating to children (Citations omitted.) 45 I am unable to accept the contention that this offending caused 'little or no harm', such that there would be no basis for a finding that future offending of a similar nature could or would cause harm. The Tribunal adopted (at [91]) the remarks of Wager DCJ about the reasons why child pornography offences are viewed so seriously in that, beyond the encouragement and inclination it gives to those who are sexually attracted to children to regard such conduct with any degree of normalcy, the supply of such material 'frequently requires that children will be sexually abused in order to supply it.' Having made those observations, it cannot be said that there was no basis for concluding that the applicant's possession of a significant quantity of child pornography in the past provided no basis for a finding that harm could be caused in the future if he were to reoffend. 46 Further, it is not established that the child with whom the applicant indecently dealt (his daughter-in-law) suffered no psychological harm. It is self-evident from the fact that sexual crimes and crimes against vulnerable people are expressly treated as serious under [9.1.1(1)] of Direction No. 79 that these crimes are likely to cause serious and unacceptable harm. 47 It may be accepted however that the 2012 offence concerning possession of fantasy stories poses a much lower risk of harm if committed in the future. 48 It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. Thus, possession and supply of child pornography is sanctioned because of the risk to children generally, who are inevitably abused to create such material and may be at greater risk of predatory behaviour by those who are encouraged by such material. In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users. 49 When understood in this way, it is accepted that the Tribunal did engage in some speculation (at [115]-[121]) about the nature of the harm to the Australian community should the applicant reoffend. However such speculation was grounded in evidence of the seriousness of the applicant's prior offences, and necessary to the extent that no decision-maker could be satisfied that harm 'would' occur in the future where harm is not an element of the offences in question. I do not accept that the use of the term 'could' instead of 'would' indicates that the Tribunal catastrophized or engaged in baseless speculation. 50 It was not an error for the Tribunal to apply [9.1.2(2)] of Direction No. 79 by asking what harm 'could' be caused should the applicant reoffend in circumstances where that analysis was clearly based on what could be a reasonably foreseeable consequence of further offences having regard to the seriousness of the offences already committed. 51 Ground 2 is also not made out.

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