SQNR v Minister for Immigration and Border Protection

Federal Court of Australia|2014-10-10|Before: Tracey J

REASONS FOR JUDGMENT 1 The applicant has filed what purports to be an "appeal" from the Administrative Appeals Tribunal ("the Tribunal"). It, however, became apparent from the applicant's written and oral submissions that he was, in substance, seeking judicial review of a decision of the Tribunal. That decision affirmed the decision of a delegate of the Minister to cancel a visa held by the applicant. The applicant is representing himself in this proceeding. He is not legally trained. In these circumstances I consider it appropriate to deal with the application as argued. The Minister raised no objection. 2 The applicant is 43 years old. He resided in Australia between 1989 and 1995. He then returned to Fiji. In 2007 he came back to Australia and has remained here since. 3 In 2010 and 2011 the applicant committed a series of offences against his 12 year old nephew. These resulted, in August 2012, in his conviction by the County Court of Victoria of two representative offences. They were the commission of an indecent act with a child under 16 years old and the sexual penetration of a child under 16 years old. These convictions led to the imposition of a total effective sentence of two and a half years imprisonment. A non-parole period of 15 months imprisonment was prescribed. 4 Shortly before the applicant was due for release on parole in November 2013 a delegate of the Minister, acting under s 501(2) of the Migration Act 1958 (Cth) ("the Act"), cancelled his spouse visa. The applicant applied to the Tribunal for review of the decision. The Tribunal affirmed the decision. 5 It was not in dispute in either the Tribunal or this Court that: A delegate of the Minister may cancel a visa under s 501(2) of the Act if the visa-holder fails the character test prescribed by s 501(6). By reason of his convictions the applicant did not pass that test. Notwithstanding this failure the Minister's delegate retained a discretion, under s 501 of the Act, not to cancel the visa. Section 499 of the Act empowered the Minister to issue directions to a person or body having functions or powers under the Act in relation to the exercise of discretionary power. The Minister had issued a direction numbered 55 ("the Direction") which dealt with the exercise of the residual discretion conferred by s 501(2). The Minister's delegate and the Tribunal were required to act in accordance with the Direction. The Tribunal had power to review the delegate's decision pursuant to s 500 of the Act. The role of the Tribunal on review of the delegate's decision was to make a fresh decision (the "correct and preferable decision") on the material before it: cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.

THE TRIBUNAL'S REASONS 6 The Tribunal provided lengthy and comprehensive reasons for its decision to affirm the delegate's decision. The reasons were carefully structured. They commenced with a chronology of relevant events. Then followed a summary of the relevant parts of the Direction, details of the applicant's criminal offending, a summary of the evidence given to the Tribunal and a summary of psychological assessments made in relation to the applicant. The reasons concluded with a detailed explanation, by the Tribunal, by reference to the relevant parts of the Direction, of why it considered that the residual discretion should not be exercised in the applicant's favour. 7 It is not necessary to outline all of the Tribunal's reasons in greater detail. This is because the grounds of review which were pressed by the applicant were confined within a relatively narrow compass. 8 The applicant relied on three grounds. Two of them alleged failure, on the part of the Tribunal, to have regard to relevant considerations. The third attacked a finding made by the Tribunal on the ground that there was no evidence to support it. 9 More specifically, the grounds were that the Tribunal had erred by: Failing to have regard to "particular information relating to the rehabilitation programs undertaken by the Applicant, and assessments made by Corrections Victoria of his risk of recidivism." Failing "to consider whether the Applicant's ethnicity and the political situation in Fiji gave rise to an international non-refoulement obligation." Finding that "there [was] a likelihood of a negative impact on the victim and his family if the Applicant's visa [was] not cancelled" when there was no evidence to support the finding.

THE DIRECTION 10 Before proceeding to deal with these grounds it is necessary to direct attention to certain aspects of the Direction which bore on the decision-making process. 11 Paragraph 6.3 prescribed principles "that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel … a person's visa under section 501". One of these principles, contained in paragraph 6.3(2), is that: "A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia." 12 Paragraph 7 provided that: "Informed by the principles in paragraph 6.3 above, a decision-maker: a) must take into account the considerations in Part A or B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community." 13 Part A of the Direction identifies a series of matters which a decision-maker is required to take into account in the exercise of the discretionary power to cancel a visa. These considerations are divided into "primary considerations" and "other considerations". Paragraph 8(4) of the Direction stipulates that the "[p]rimary considerations should generally be given greater weight than the other considerations." 14 There are four primary considerations. Two of them are of present relevance. The first is the protection of the Australian community from criminal or other serious conduct and the other is whether Australia has international non-refoulement obligations to the visa holder. 15 In elaborating on the first of these considerations paragraph 9.1 directs that the decision-maker should have regard to the government's commitment to protecting the Australian community from harm arising from criminal activity or other serious conduct by non-citizens. In doing so the decision-maker should consider the nature and seriousness of the visa holder's misconduct and the risk to the Australian community if the person were to commit further offences or engage in other misconduct. Paragraph 9.1.2(1) directs that, in considering whether the person represents an unacceptable risk of harm to the community or members of it, a decision-maker should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In making this assessment the decision-maker is required to have regard, cumulatively, to the nature of the harm to individuals or to the Australian community if the person were to engage in further or other serious conduct and the likelihood of the person engaging in further criminal or other serious conduct, taking into account evidence about the risk of reoffending and any rehabilitation. 16 One of the "other considerations" which decision-makers are required to take into account is the impact of a decision not to cancel a visa on the victim of a visa holder's criminal conduct and on the family members of the victim: see paragraph 10(1).

REHABILITATION PROGRAMMES AND ASSESSMENTS 17 During oral argument the applicant identified the "particular information" which related to the rehabilitation programmes and assessments which he had undertaken and to which he said the Tribunal had failed to have regard. A number of the documents which he identified as being before the Tribunal but not specifically referred to by it in its reasons were in fact mentioned. An example of a document falling into this category was an assessment of the applicant, undertaken on 18 September 2012, which found that he was at a low risk of sexual and violent recidivism. It was referred to by the Tribunal in its reasons at [47]. Another assessment of him as having a low general risk of reoffending, which was made on 30 January 2013, was, on the other hand, not referred to specifically in the Tribunal's reasons. Nor were certificates of completion of an alcohol treatment programme dated 12 October 2012 or for achievement in a harm reduction programme on 30 September 2013 specifically mentioned. Despite this, the Tribunal did refer in its reasons (at [91]) to the applicant having completed alcohol treatment and anger management courses whilst in custody. 18 These complaints failed to distinguish between relevant considerations and particular pieces of evidence: see, for example, Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 (Carr J); Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 at 472-3. The Tribunal was bound, by the direction, to give primary consideration to the protection of the Australian community from criminal or other serious conduct. In doing so it was required, among other things, to take into account the risk of the applicant reoffending and the mitigation of that risk (if any) achieved by way of rehabilitation. These were matters which the Tribunal clearly took into account when deciding to affirm the decision under review. 19 The applicant also complained that, had he not been transferred to immigration detention upon his release from prison on parole, he could have undertaken further remedial courses. The difficulty which confronted the applicant in this regard was acknowledged by the Tribunal (at [90]) when it said that the applicant's "failure to have undertaken appropriate treatment was not by any default or resistance on the part of the applicant." The Tribunal also dealt (at [92]) with evidence given to it by the applicant that he would willingly have undertaken a six or nine month sex offenders programme had it been available to him. Having heard this evidence, however, and observing the applicant over two days and having heard the evidence of other witnesses the Tribunal said that it was "satisfied that his subsequent expression of willingness to undertake treatment was self-serving and not a genuinely expressed belief of any need for treatment …".

NON-REFOULEMENT 20 The Tribunal determined (at [74]) that Australia's non-refoulement obligations were not relevant to the determination of the application before it. The Minister's delegate had earlier expressed the same view. 21 The applicant referred to a large volume of documents which he had placed before the Tribunal in support of his appeal. Under a heading "Non-refoulement Obligations" there appeared two pages of text and four pages of photocopies of media articles. The media articles were dated 8 December 2006 and 28 October 2013. They dealt generally with the coups which had displaced Fijian governments in years past and the prospect for the resumption of a stable political democracy. The applicant's written comments contested the delegate's finding that he did not face serious hardship upon his return to Fiji. He referred to his past employment in the tourist industry and downplayed the prospect of his obtaining gainful employment should he be required to go back to Fiji. 22 The applicant also drew attention to oral evidence which had been given to the Tribunal on his behalf by his brother, his daughter and his son relating to the economic hardship which he might experience in Fiji. A transcript of this evidence was not available to the Court. 23 These issues were not ignored by the Tribunal. They were dealt with at [80]-[83]. It recorded that the applicant had lived for 30 of his then 42 years in Fiji. He was familiar with that county's culture and was "also very aware of and able to deal with the political climate existing in Fiji." He spoke English - the language of Fiji. His parents both resided there. There was some prospect of him obtaining employment in the tourist industry where he had previously worked. The Tribunal also took into account the effects of a neck injury which the applicant had sustained in Melbourne. The condition was, however, treatable in hospitals in Fiji. 24 It is implicit in this treatment of the applicant's case, as argued in the Tribunal, that the applicant had not there argued that the economic harm anticipated by him, should he return to Fiji, rose to the level of serious harm that would have engaged Australia's non-refoulement obligations. The solicitor who appeared for the Minister at the Tribunal confirmed that no submission was made by the applicant in the Tribunal that non-refoulement obligations prevented his return to Fiji. 25 The authorities establish that the Tribunal will err if it ignores claims which an applicant fails expressly to articulate but which clearly arise on the materials before it: see, for example, Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-4. If, however, there is some material before the Tribunal which might support a claim but which does not emerge clearly from the materials before it, the Tribunal will not fall into error by not considering and ruling on the claim: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22. 26 The material on which the applicant sought to rely could not, in my view, have founded a clearly articulated claim for non-refoulement. Much of the material was dated and little of it dealt expressly with the applicant's personal circumstances. That which did concentrated on employment and health issues. At no point did he claim to fear persecution for a Convention reason or significant harm should he return to Fiji. In this context it is to be recalled that he voluntarily returned to that country in 1995 and remained there for 12 years without any suggestion of him suffering persecution for a Convention related reason.

NO EVIDENCE 27 Under the heading with "other considerations" the Tribunal dealt with the effect of the applicant's offending on his victim and the victim's family. At [77]-[78] the Tribunal said: "77. The only reference of the impact on AW by the offending is a reference by His Honour Judge Smallwood in the sentencing remarks where part of a victim impact statement is reproduced (p. 92) in which AW recorded his anger at the applicant and the effect of his offending on his family. The applicant's former wife, HB, recorded in her statement (Exhibit R1 at paragraph 23) that AW has been very badly affected by the experience and his mother would be devastated if the applicant remained in Australia. 78. I am satisfied on this brief information, in the absence of any other, including specialist evidence that by regard to the offending committed by the applicant there is a likelihood of a negative impact on the victim, and his family if the applicant's visa is not cancelled." (Emphasis in original). 28 The applicant contended that there was no evidence before the Tribunal to support the findings that there was a likelihood that there would be a negative impact on the victim and his family should the applicant remain in Australia. 29 In making this submission the applicant relied on the decision of North J in Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299. In that case the Tribunal had determined that any decision not to cancel the applicant's visa may have an adverse impact on the victims of his criminal behaviour and their family members. The only evidence relating to the point was found in the sentencing remarks of the trial judge. While the trial judge mentioned two victim impact statements which had outlined the impact of the offences on the victims, nothing was said about the attitude of the victims and their families to the prospect of the applicant being allowed to remain in Australia. In these circumstances North J found that there had been a jurisdictional error. 30 The facts of the present case may readily be distinguished. The Tribunal had before it not only the sentencing remarks of the trial judge but also a witness statement from the applicant's ex-wife. In that statement she deposed that the victim had "been very badly affected by the experience, and [that the victim's mother] (the deponent's sister) would be devastated should [the applicant] be allowed to remain in Australia, where he would be free to do further damage to another family's life." 31 The sentencing remarks also dealt with the complainant's victim impact statement. The trial judge said that: "I am simply going to read from one paragraph [of the victim's statement], which I think summarises what happens. He says, "Since then I've been angry at [the applicant] because of what he did to me and how he has torn the family apart. I am not just angry at [the applicant] but I'm angry at the whole world because of what happened to me. I don't feel like eating much any more and I don't want to talk to anybody any more. No one deserves to go through what he did to me." That is very true. Sometimes it is viewed with offending such as this, that it relates between an offender and one victim. This sort of offending frequently tears families apart and it would seem that that is exactly what has happened here, and that is, of course, a pertinent matter when considering general deterrence in particular." 32 This material clearly supported the findings made by the Tribunal as to the adverse impact of the applicant's offending on both the victim and on the reaction of the victim and some of his immediate family members to the applicant's conduct.

DISPOSITION 33 None of the grounds has been made out. No reviewable error has been established. 34 The application must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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