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

Federal Court of Australia|2020-10-19|Before: Act J, Rangiah J

The application is dismissed.
The applicant pay the respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant applies for an extension of time to seek judicial review of a decision of the respondent (the Minister) made pursuant to s 501CA(4)(b) of the Migration Act 1958 (Cth) (the Act) to decline to revoke the cancellation of the applicant's visa. 2 The applicant's solicitor has explained that the application was not filed in time due to difficulties in having an affidavit executed because of a public holiday and with the electronic filing of the application. The delay was ultimately only three days. There is no prejudice to the Minister. The grounds of the proposed application are reasonably arguable. The Minister does not oppose the extension of time. I will grant the extension. 3 Accordingly, it is necessary to consider the application for judicial review. I will describe the circumstances in which the decision came to be made, the Minister's reasons and the grounds of review, before considering those grounds.

The grounds of the application 17 The grounds of the amended originating application are as follows: 1. The Minister took into account an irrelevant consideration, namely, the applicant's criminal history to the extent that it included "convictions" in relation to which a Queensland Court ordered that there be "no conviction" recorded and which were, as a matter of law, taken not to be convictions for any purpose. 2. The Respondent Minister's non-revocation decision is affected by jurisdictional error because he failed to take into account that a consequence of a decision not to revoke the mandatory cancellation decision would be to operate to prevent the sentence imposed on the Applicant by the Queensland Magistrates Court on 2 February 2018 from being executed or carried out to its completion. PARTICULARS (a) The Minister constructively failed to exercise his jurisdiction, or otherwise failed to carry out the statutory task required by s501CA(4) by failing lawfully to consider the consequence as "another reason" as to why the cancellation decision should be revoked; (b) Alternatively, the consequence was a relevant matter the Minister was required to take into account: (i) upon a true construction of the subject-matter, scope and purpose of the legislative regime for the grant, cancellation (relevantly, on character grounds) and revocation of such cancellation in the Migration Act 1958, (as construed conformably with the Constitution and the general system of law); and (ii) because the issue of the applicant's future supervision pursuant to the sentence imposed by the Queensland court, if the cancellation decision was revoked, was a matter squarely raised in representations made by and on behalf of the applicant in response to the invitation issued pursuant to s 501CA(3)(b). 3. The Minister failed to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations made by and on behalf of the applicant as demonstrating a reason why the cancellation decision should be revoked under s 501CA(4) of the Act. PARTICULARS The Minister failed to consider, that if the cancellation decision was revoked, by reason of the sentence imposed by the Queensland Court: (a) the applicant's rehabilitation and reintegration into the community would be monitored; (b) the applicant would be the subject of regular drug testing and supervision; (c) the applicant would be required to complete a Domestic Violence perpetrators course; (d) the applicant would be required to take part in counselling and satisfactorily attend any other programs directed by a corrective services officer; and (e) the applicant would be under the supervision in the community until 2021. 4. The non-revocation decision was legally unreasonable. PARTICULARS (a) the conclusions that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other consideration lack an evident and intelligible justification; and (b) the decision is one which no reasonable decision-maker could have reached without consideration of the risk to the Australian community posed by the Applicant after completion of the judicially imposed sentence.

Ground 1: Taking into account the applicant's offending where a court ordered that no conviction be recorded 18 The applicant's first ground is that the Minister took into account an irrelevant consideration, namely, the applicant's criminal history to the extent that it included "convictions" in relation to which a Queensland court ordered that there be "no conviction" recorded and which were, as a matter of law, taken not to be convictions for any purpose. 19 The applicant's argument is that s 12(3)(a) of the Penalties and Sentences Act 1992 (Qld), s 184(2) of the Youth Justice Act 1992 (Qld) and s 85ZR(2) of the Crimes Act 1914 (Cth) prohibit the Minister from taking into account a "conviction" where there has been an order that no conviction be recorded. The applicant submits that, in this context, a finding of guilt is a "conviction" that may not be taken into account. The applicant submits that the Minister, contrary to these provisions, took into account such findings of guilt and, accordingly, took into account irrelevant considerations. The applicant also submits that the Minister cannot take into account the facts and circumstances of an offence where no conviction has been recorded. Apart from these arguments, I understand the applicant's written submissions to have been overtaken by his oral submissions. 20 The Minister accepted in oral argument that he had taken into account findings of guilt in respect of offences where a court had ordered that no conviction be recorded. However, the Minister submits that the judgment of Kiefel J (as the Chief Justice was then) in Hartwig v P E Hack, Deputy President, Administrative Appeals Tribunal [2007] FCA 1039 provides direct authority for the proposition that such findings of guilt may be taken into account. 21 In reply, the applicant sought to distinguish Hartwig on the basis that the case did not consider s 184(2) of the Youth Justice Act, which is in different terms to s 12(3)(a) of the Penalties and Sentences Act. 22 The applicant committed a number of offences as a juvenile in respect of which he was convicted, but where a court ordered that no conviction be recorded. There were also several offences as an adult where the applicant was convicted but no conviction was recorded. 23 The Minister observed at para 28 of his reasons that the applicant had, "appeared in juvenile courts three times and adult courts twice, for assaults of police and some other offences, without any convictions being recorded, though he was fined and placed on probation". It is apparent that the Minister took into account that the applicant had been found guilty, or that his pleas of guilty were accepted by the court. It is also apparent that the Minister took into account the nature of at least some of those offences and punishments imposed upon the applicant. 24 An "irrelevant consideration" in administrative law is a consideration that a decision-maker is bound to not take into account, either expressly or by implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. Section 501CA(4) of the Act does not itself prohibit the Minister from taking into account convictions or findings of guilt where a court has ordered that no conviction be recorded. However, the applicant submits that such a prohibition arises from the operation of s 85ZR(2) of the Crimes Act, taken with s 12(3)(a) of the Penalties and Sentences Act and s 184(2) of the Youth Justice Act. 25 Section 12(3)(a) of the Penalties and Sentences Act provides that, "Except as otherwise expressly provided by this or another Act…a conviction without recording the conviction is taken not to be a conviction for any purpose". 26 Section 184(2) of the Youth Justice Act provides, "Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose". 27 Section 85ZR(2) of the Crimes Act provides: (2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country: … (b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence. 28 Section 85ZP(3) of the Crimes Act provides, relevantly: (3) Nothing in this Part authorises a person or body to disclose or take into account a conviction of an offence if to do so would contravene any Commonwealth law, State law, Territory law or foreign law. 29 In Hartwig, Kiefel J considered a ruling by the Administrative Appeals Tribunal, where the District Court of Queensland had directed that no conviction be recorded, that it was open to the Tribunal to have regard to the fact of the District Court proceedings and the conduct that led to those proceedings. Her Honour held: 6 …Section 12(3) of the Penalties and Sentences Act (Qld) requires that no record be kept of a person's conviction, except for the Court's purposes concerning an appeal or subsequent offences. It requires that it not count as a conviction for any purpose, other than those. As McPherson JA pointed out in R v Gallagher (1999) 1 Qd R 200, that does not mean that there is no conviction in the usual sense of the word. 'Conviction' usually refers to the Court's acceptance of a verdict or a plea of guilty. 7 Section 12(3) of the Penalties and Sentences Act (Qld) works with s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), which provides that a person shall not be obliged to disclose, or be asked to disclose, a conviction that is not part of that person's criminal history. The effect of the section is not to treat the conviction as not having occurred, but to expunge it from a person's criminal history. Its purpose is to permit them to conduct their lives, obtain employment, and other benefits, without having to divulge that aspect of their history. 8 The nature of the State legislation, to which s 85ZR(2) of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence. The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do. It is not without significance that the section is headed 'Pardons for Persons Wrongly Convicted'. Other legislation of the type to which s 85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years. … 11 Section 12(3) of the Penalties and Sentences Act (Qld) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar. The former is concerned that there be no record of a conviction. The Commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether. Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance. In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld). The Commonwealth provision does not operate on that provision in the way contended for. 12 It follows, in my view, that the AAT is entitled to take account of the fact of conviction, which is to say: the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT, which involves the purpose for which a person is said to be fit and proper. 30 The reasoning applied by Kiefel J directly disposes of the applicant's argument in respect of the operation of s 12(3) of the Penalties and Sentences Act and s 85ZR(2) of the Crimes Act. However, the applicant argues that s 184(2) of the Youth Justice Act is distinguishable. The applicant points to the different wording of the provision and submits that it is intended to have a different meaning to s 12(3) of the Penalties and Sentences Act. 31 However, the language of the two provisions is not relevantly distinguishable. Under s 12(3) of the Penalties and Sentences Act, "a conviction without recording the conviction is taken not to be a conviction for any purpose". Section 4 of that Act defines "conviction" to mean a finding of guilt, or the acceptance of a plea of guilty, by a court. Section s 184(2) of the Youth Justice Act provides that, "a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose". The difference between the provisions seems to be merely that "conviction" in s 12(3) of the Penalties and Sentences Act is separately defined, whereas s 184(2) of the Youth Justice Act is drafted to incorporate a similar definition, rather than the term being separately defined. Like s 12(3) of the Penalties and Sentences Act, s 184(2) of the Youth Justice Act does not deem a person "never to have been convicted of an offence". Accordingly, s 85ZR(2) has no application. 32 It follows that s 12(3)(a) of the Penalties and Sentences Act, s 184(2) of the Youth Justice Act and s 85ZR(2) of the Crimes Act do not prohibit the Minister from taking into account a finding of guilt, or acceptance of a plea of guilty, and the facts and circumstances of the offence. To the extent that the Minister considered such matters in the exercise of his powers under s 501CA(4) of the Act, the Minister did not take an irrelevant consideration into account. 33 The first ground must be rejected.

Ground 2: Failing to take into account a consequence of the decision 34 Ground 2 is that the Minister failed to take into account that a consequence of the decision would be to prevent the sentence imposed on the applicant on 2 February 2018 from being executed or carried out to its completion. 35 In oral submissions, the applicant's counsel explained that there are two components of this ground, namely whether the power can be exercised without, first, consideration of the effect of the Magistrates Court's decision; and, second, consideration of the fact that the Minister's decision would prevent the applicant from carrying out the rehabilitative component of that sentence. 36 The applicant alleges that by failing to take these matters into account, the Minister constructively failed to exercise his jurisdiction, or overlooked a mandatory relevant consideration. The applicant also argues that the Minister was required to take these matters into account because they were squarely raised in the representations made to the Minister. 37 The Magistrates Court of Queensland set a parole release date of 13 May 2018, which would have seen the applicant remaining on parole until 13 September 2019. The court also imposed a separate probation order for a period of three years which would have run until 13 May 2021. 38 The applicant's solicitors said in representations made to the Minister, "Further, Mr Thornton has been on parole upon release, which will mean that his rehabilitation and reintegration into the community will be monitored, and will also be assisted by his family". The solicitors also said that, the applicant "will be supervised per his parole order, where he will regularly be drug tested". The applicant had also said in representations provided to the Minister that he would be under the supervision of a parole officer for three years and would be drug tested and required to take part in counselling and satisfactorily attend programs, including a domestic violence perpetrators program. 39 The applicant submits that s 501CA recognises that mandatory cancellation affects the interests of the visa-holder in a very substantial way, and that the legislature was concerned that the Minister should not overlook crucial considerations which might counterbalance or outweigh the cancellation. The applicant submits that the legislation should be construed conformably with s 118 of the Constitution, which requires that "full faith and credit" be given to the laws, public Acts and records and judicial proceedings of every State. It is argued that the legislature could not have intended to permit the Minister to overlook, disregard, or pass without comment, the fact that the exercise of the power may have the effect of preventing the execution of a sentence imposed by a court. The submission continues that there are parallels with the principle of legality and, as the decision prevents execution of the sentence imposed by a court, it should be implied that the legislature required the Minister to consider this consequence because it represents a departure from "the general system of law". 40 The applicant also submits that the Full Court in Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 at [139] recognised that the Minister is obliged to consider issues raised in representations made by the visa-holder in response to a valid invitation to make representations made pursuant to s 501CA(3)(b). 41 The respondent submits principally that the Minister was not required to take the parole or probation order into account as a mandatory relevant consideration, but did, in any event take them into account. 42 The representations made on behalf of the applicant, viewed as a whole, are a mandatory relevant consideration: see Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34]. Although the Minister has an obligation to engage in an active intellectual process with significant and clearly expressed representations, that does not elevate every contention in the representations to a mandatory relevant consideration: Omar at [37]; BHA17 at [139]; Hooton v Minister for Home Affairs (2019) 264 FCR 517 at [64]. 43 In BHA17, the Full Court observed: [135] .... There is nothing in the subject matter, scope or purpose of the Migration Act, in providing a regime for the grant, cancellation (relevantly, on character grounds) and revocation of such cancellation, that requires indirect consequences, such as the loss of benefits and entitlements bestowed by other Commonwealth statutes, to be taken into account other than in the context of considering representations made under s 501CA(4) of the Migration Act... [136] ... It is not enough that a consequence be a legal consequence, or even a direct legal consequence, of a decision that produces or continues a particular state of affairs. It must be a consequence which is a consideration required to be taken into account as a matter of inference from the subject matter, scope or purpose of the Migration Act. Were it otherwise, a revocation decision-maker (and, by parity of reasoning, all other decision-makers) would be required, as a matter of jurisdiction, to take into account legal consequences that are outside the ambit of the statute pursuant to which the power or discretion is being exercised. 44 In Hooton, the Minister had observed that the appellant's rehabilitation was untested in the community, in circumstances where he would not be subject to the supervision of the parole service, his parole period having expired. However, the Minister had not taken into account the supervision the appellant would have under a statutory scheme requiring supervision as a person convicted of a child pornography offence. The Full Court held at [58] that risk to the community was not a mandatory consideration in respect of a decision under s 501CA(4) in the absence of representations in response to an initiation under s 501CA(3) raising the point as a significant issue. It followed that a factor relevant to assessment of that risk could not be a mandatory consideration. 45 The prospect of the applicant attaining rehabilitation through supervision under a probation or parole order is a matter that goes to the risk to the community if the applicant were to remain in Australia. The reasoning in Hooton makes it clear that such risk is not of itself a mandatory consideration. Further, to the extent that probation or parole may be regarded as a benefit to the applicant, the reasoning in BHA17 makes it clear that the deprivation of that benefit is not a mandatory consideration. 46 The meaning of s 118 of the Constitution has not been fully explored: see John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [65]. However, the applicant has not provided any adequate explanation of how s 118 operates to make the consideration relied upon - that the consequence of the decision would be to prevent the sentence from being executed or carried out to its completion - a mandatory consideration in the exercise of the power under s 501CA(4). Neither has the applicant adequately explained how any analogy with the principle of legality operates to do so. 47 The Minister expressly referred to the applicant's submission that he would be supervised under parole after his terms of imprisonment if he were not removed from Australia, in paras 40-41 of his reasons. The Minister also expressly considered the probation order, at para 32. It was the Minister's assessment that the applicant would pose an unacceptable risk of harm to the Australian community if released into the community which was the determinative factor in the decision. It is apparent that the Minister was well aware of, and did not overlook, the fact that the consequence of the decision would be to prevent the probation and parole orders from being executed or carried out. Further, I do not accept that the Minister overlooked that the applicant would be prevented from undertaking the rehabilitative aspects of his sentences if he were removed from Australia. 48 The second ground must be rejected.

Ground 3: Failing to consider clearly articulated claims 49 The third ground is that the Minister failed to consider substantial or significant and clearly articulated claims raised by the applicant's representations. These claims are that, by reason of the sentences imposed, the applicant's rehabilitation and reintegration into the community would be monitored; he would be subjected to regular drug testing and supervision; he would be required to complete a domestic violence perpetrators course; he would be required to take part in counselling and satisfactorily attend any other programs directed by a corrective services officer; and he would be under supervision in the community until 2021. 50 The applicant submits that the Minister failed to apply an active intellectual engagement with these matters: cf Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352. In Omar, it was held at [39] that this requires more than simply acknowledging or noting that representations have been made, and, depending on the nature and content of the representations, the Minister may be required to make specific findings of fact by reference to relevant parts of the representations. 51 However, each of the matters relied upon by the applicant was considered by the Minister, particularly at paras 40-41 of his reasons. Taking those matters into account, together with other factors, the Minister found at para 44 that there was an ongoing risk that the applicant would reoffend, albeit lower than it was at the time of the most recent reoffending. The Minister rejected the submission that the applicant's prospects of rehabilitation were sufficient to warrant revocation of the cancellation decision. In my opinion, the Minister did actively engage with the relevant matters. 52 Ground 3 must fail.

Ground 4: Legal unreasonableness 53 The fourth ground is that the decision was legally unreasonable. 54 The applicant submits that the Minister's conclusion that the applicant represents an unacceptable risk of harm to the Australian community, and his conclusion that protection of the Australian community outweighed any other consideration, lacked any evident and intelligible justification. The applicant also submits that the decision was one which no reasonable decision-maker could have reached without consideration of the risk to the Australian community posed by the applicant after completion of the sentences imposed by the Magistrates Court. 55 The premise of the second submission, that the Minister failed to consider the risk to the Australian community posed by the applicant after completion of the sentence, is not established. The Minister, at paras 35-41 of his reasons, considered the applicant's representations concerning why he would not reoffend if released into the community after completing his sentences of imprisonment. The Minister considered, for example, the applicant's claim that, upon his release, he would live with his parents and not return to the Sunshine Coast; that he would return to work; and that he would attend a domestic violence perpetrators program. The Minister also considered the applicant's representation that he would have to report to a parole officer and be subjected to regular drug testing, and a psychologist's report which concluded that if he could avoid substance misuse, the applicant's risk of reoffending would be reduced. The Minister accepted that the applicant had shown a genuine intention to rehabilitate and had taken steps towards that goal. 56 However, the Minister also noted that avoiding drugs and alcohol was easier in a prison environment, but that this did not necessarily reflect the risk of recidivism in the community, where drugs are more easily obtained, there are various personal pressures, and there is exposure to bad company. The Minister observed that employment and family support were available in the past, but had not stopped the applicant from offending. Further, the applicant's maturity and rehabilitation was yet to be tested in the community. The Minister found that, in these circumstances, there was an ongoing risk that the applicant would reoffend, albeit lower than it was at the time of the most recent reoffending. 57 Accordingly, the Minister did consider the risk to the Australian community that would be posed by the applicant after completion of his sentence. The applicant's second submission cannot be accepted. 58 The applicant's first submission, that the Minister's conclusions lack an evident and intelligible justification, must also be rejected. The Minister's view that there was an ongoing risk that the applicant would reoffend was logically and reasonably available, given his history of drug and alcohol addiction and his criminal record. Once that view was taken, it was within the Minister's area of decisional freedom to conclude that the risk of harm to the Australian community was unacceptable and that the protection of the Australian community outweighed any other consideration. It may be accepted that the decision appears harsh, given the applicant's young age at the time of offending, his lack of any connection with the UK, that his criminal history is not as serious as many others commonly seen in cases of this kind and the Minister's acceptance that it was the applicant's intention to rehabilitate. However, the applicant has not demonstrated that there was no evident and intelligible justification for the decision. 59 The fourth ground cannot be accepted.

Conclusion 60 I have held that the extension of time should be granted. However, the applicant has not established any of his grounds of review. The application must be dismissed with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Crimes Act 1914(Cth)ss 85ZP

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