Federal Court Dismisses Protection Visa Judicial Review Case

OUTCOME: Dismissed

Federal Court of Australia

[APPELLANT] v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 976 Appeal from: [APPELLANT] v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 378

File number(s): NSD 250 of 2022

Judgment of: HALLEY J

Date of judgment: 22 August 2022

Catchwords: MIGRATION – application for protection visa – review of decision of Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the Minister to refuse to grant the applicant a protection visa – applicant self-represented – whether Tribunal failed to consider relevant information and documents – whether Tribunal's decision and reasoning legally unreasonable – additional ground of review raised at hearing – whether Tribunal required to consider that applicant stateless and potentially facing indefinite detention – application dismissed

Legislation: Migration Act 1959 (Cth) ss 36, 65, 476A, 500

Cases cited: DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 [NAME] v [COMPANY] [1986] HCA 40; (1986) 162 CLR 24 [NAME] v [NAME] (2018) 264 CLR 541; [2018] HCA 30 [NAME] v [NAME] (2013) 249 CLR 332; [2013] HCA 18

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 48

Date of hearing: 12 August 2022

Counsel for the Applicant: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

Table of Corrections Page 1 of 12 Citation "[2022] AATA 478" changed to "[2022] AATA 378" page 4 of 12, paragraph 1 Citation "[2022] AATA 478" changed to "[2022] AATA 378"

ORDERS NSD 250 of 2022

BETWEEN: [APPELLANT] Applicant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

order made by: [RESPONDENT] J DATE OF ORDER: 22 August 2022

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". 2. The originating application be dismissed. 3. The applicant is to pay the first respondent's costs, as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

Introduction 1 This is an application pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of [RESPONDENT] respondent, the Administrative Appeals Tribunal (Tribunal), dated 4 March 2022: see [APPELLANT] v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 378 (T). The decision under review affirmed a decision of a delegate of the first respondent (Minister) made on 30 July 2020 to refuse the applicant a protection visa. 2 The applicant was self-represented in the hearing before the Court on 12 August 2022 and appeared with the assistance of an interpreter. 3 The applicant seeks an order that the decision of the Tribunal be quashed, and a writ of mandamus issue directed at the Tribunal, requiring the determination of the application according to the law. 4 The grounds of review in the application, filed on 7 April 2022, are as follows (as written):

1. The tribunal should have considered that I will have my treatment as soon as my release from detention.

2. The tribunal also did not consider number of documents, presented by the applicant that the tribunal was required to look at.

3. The reasoning on risk of reoffending is unreasonable.

4. The tribunal reached a decision that is unreasonable/illogical. 5 For the reasons given below, the application must be dismissed.

Factual Background 6 The following factual background is generally drawn from the decision of the Tribunal at T[1]-[11]. 7 The applicant was born outside Australia in about 1996. He is stateless. The applicant has never been issued with a birth certificate and is unaware of his exact date of birth. 8 In 2012, the applicant arrived in Australia as an unauthorised maritime arrival. He was held in immigration detention until 2013 when he was granted a bridging visa. The bridging visa allowed him to live in the [NAME] while applying for a protection visa. He lived with his brother in a group house in Sydney. He joined in events organised by his ethnic community. He studied English and attended classes daily. 9 In January 2015, the applicant sexually assaulted a [NAME] who was known to him. The offence took place in a house while the applicant was visiting a friend. It is not in dispute that, in August 2016, in a final judgment of the District Court of New South Wales, the applicant was convicted of the offence of "sexual intercourse with a person aged between 10 and 14 years". 10 While in prison, the applicant undertook a [NAME], which included how to exercise self-control. He also studied English and took a computer course. He gained employment in the kitchen. 11 The applicant was on a waiting list for the [NAME] for two to three years. He was not offered that program during his imprisonment. Immediately on release from prison, he was transferred to immigration detention where he has received some counselling. 12 In June 2017, the applicant applied for a [NAME] (subclass 790) visa (protection visa). 13 On 30 July 2020, a delegate of the Minister refused the application for the protection visa pursuant to s 36(1C)(b) of the Act. That section requires that a person applying for a protection visa is not a person who, having been convicted by a final judgment of a particularly serious crime, is considered by the Minister, on reasonable grounds, to be a danger to the [NAME]. The applicant was assessed to be a danger to the [NAME]. He was advised that he was entitled to apply to the Tribunal for a merits review of the delegate's decision. 14 The applicant applied to the Tribunal to review the decision of the delegate. 15 On 4 March 2022, the Tribunal affirmed the delegate's decision.

Relevant statutory provisions 16 Section 36 of the Act relevantly provides: 36 Protection visas—criteria provided for by this Act (1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). … (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: … (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the [NAME]. 17 The power of the Tribunal to review a decision to refuse to grant a protection visa, pursuant to s 65 and relying on s 36(1C), is provided by s 500(1)(c)(i) of the Act: 500 Review of decision (1) Applications may be made to the Administrative Appeals Tribunal for review of: … (c) a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on: (i) subsection 5H(2) or 36(1C); … 18 Pursuant to s 476A(1)(b) of the Act, this Court has original jurisdiction in relation to a migration decision if, and only if, the decision is a privative clause decision, or a purported privative clause decision, of the Tribunal on review under s 500 of the Act.

Tribunal Decision 19 The only question before the Tribunal was whether the applicant is a danger to the [NAME] within the meaning of s 36(1C)(b). It was not disputed before the Tribunal that the applicant had been convicted by a final judgment of a particularly serious crime. 20 The Tribunal was required to decide, on the evidence before it at the time of its decision, whether it was satisfied that the applicant was a danger to the [NAME] within the meaning of that expression in s 36(1C)(b). The expression "danger" has been held to mean "present and serious risk" in the context of a mandatory cancellation of a visa under s 501(3A) of the Act: DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 at [83] ([NAME] J). I am satisfied that this meaning is equally applicable in the current context. 21 The Tribunal referred to evidence relating to the applicant's intention to participate in trauma counselling and sex offender treatment. Among other reports, the Tribunal referred to evidence of Ms [NAME], a clinical psychologist, and Ms [NAME], a psychologist. 22 The Tribunal dealt with this evidence in its evaluation of whether it was satisfied on reasonable grounds that the applicant was a danger to the [NAME], in particular: (a) at T[62], the Tribunal accepted that "[the applicant] has received some counselling to assist him to deal with his post-traumatic stress disorder but noted that nevertheless, despite his request and recommendations made before he was sentenced and again before he was released from prison, he has not had the benefit of a [NAME]"; (b) at T[64], the Tribunal stated that the dynamic factors relied on by Ms [APPELLANT] as reducing recidivism risk depended on the applicant's ability to implement his proposals for rehabilitation, which the Tribunal then doubted in the paragraphs that followed; (c) at T[71], the Tribunal accepted that the applicant had made some progress by undertaking trauma counselling, however, in the absence of his participation in a [NAME], the Tribunal was not satisfied of the extent of the applicant's insight into his offending nor that he fully accepted responsibility for it; (d) at T[72], the Tribunal found that it was regrettable that the applicant had not been offered any form of [NAME] while in prison or immigration detention, despite his request to participate, it accepted that the applicant benefited from the trauma counselling he had received, but found that this was not directed specifically to minimising the applicant's risk of reoffending; (e) at T[74], the Tribunal accepted the evidence of Ms [APPELLANT] that treatment was available to the applicant and that it was likely to substantially reduce the risk of his re-offending, accepted that the applicant intended to pay for the treatment if he was in a position to do so and on the basis of the evidence of Ms [NAME] and Ms [NAME] it was satisfied that, with the right treatment, the applicant's prospects of rehabilitation were good. (f) It concluded, however, that it must decide whether the danger of harm to the community exists on the basis of the treatment received, not the treatment to be received. The Tribunal also noted that "[o]bviously, it is very difficult for the Applicant to avail himself of the treatment whilst he is in detention without an income"; and (g) at T[75], the Tribunal took into account the extreme seriousness of the crime committed against a [NAME] and observed that the effects of the applicant's actions on the child are unknown and that he may suffer from those effects for the rest of his life. It found that should the applicant reoffend, the effect on other members of the [NAME], particularly those members most in need of protection, were likely to be serious and in circumstances where the applicant is yet to commence treatment, there was a significant risk that he might act on impulse should the opportunity again arise.

Consideration

Ground 1 23 Ground 1 was expressed in the following terms: The tribunal should have considered that I will have my treatment as soon as my release from detention. 24 Essentially, the applicant contends that the Tribunal failed to take into account a relevant consideration when making its decision. 25 In its reasons, the Tribunal observed that the applicant wanted to participate in a sex offender programmed to better understand his feelings (at T[15]), he had been unable to gain entry into a [NAME], either in prison or in immigration detention (at T[31]) and that if the applicant were able to return to Sydney, Ms [APPELLANT], a psychologist with considerable experiences in providing programmes for male sex offenders, would be prepared to work with the applicant and that treatment of offenders usually involves weekly consultations over a six to twelve month period. 26 The Tribunal further noted, at T[64], that it was not satisfied that the applicant's risk of reoffending was as low as that expressed by Ms [NAME], and that the "dynamic factors" relied upon by Ms [APPELLANT] depended upon the applicant being able to implement his proposals for his rehabilitation. Further, at T[65], the Tribunal found that the applicant's future accommodation and employment is uncertain, and the success of the applicant's treatment will depend on maintaining the motivation he has expressed. 27 I am satisfied, given the reasoning of the Tribunal summarised above, that the Tribunal, in reaching its decision that the applicant was a danger to the [NAME] within the meaning of that expression in s 36(1C)(b), considered the evidence before it, including the respective expert reports as to the risk of the applicant reoffending and the applicant's preparedness to undertake sex offender treatment if he were in a position to do so. 28 This ground of review has not been established.

Ground 2 29 The applicant contends in his [RESPONDENT] ground of review that: The tribunal also did not consider number of documents, presented by the applicant that the tribunal was required to look at. 30 The Minister submits that the applicant has not identified which documents the Tribunal overlooked or why any documents that had been overlooked were cogent and relevant to the issues before the Tribunal. 31 In the course of the hearing the applicant was invited to identify the documents that he contends were not considered by the Tribunal. He did not identify any such documents. Rather, in response to an invitation to identify the documents, the applicant stated, through his interpreter: I was referring to Ms [NAME] witness – Ms [NAME], the conversation or the planning to go ahead and get some program or get myself involved with some program regarding the matter. And also in future I have more intention to participate in that sort of program. That was not taken into consideration 32 This ground was directed as a failure to consider "a number of documents". As no particulars of such documents were identified, this ground of review must be dismissed.

Grounds 3 and 4 33 The applicant's third and fourth grounds can conveniently be addressed together. 34 The applicant contends in those grounds that:

3. The reasoning on risk of reoffending is unreasonable.

4. The tribunal reached a decision that is unreasonable/illogical. 35 The legislature is taken to intend that a statutory power will be exercised reasonably by the decision-maker: [NAME] v [NAME] (2013) 249 CLR 332; [2013] HCA 18 ([NAME]) at [26] and [29] (French CJ), [63] ([NAME], [NAME], as her Honour then was, and Bell JJ), [88] (Gageler J). 36 As stated by [NAME] and [NAME] JJ in [NAME] v [NAME] (2018) 264 CLR 541; [2018] HCA 30 ([NAME]) at [80], citing [NAME] at [67] ([NAME] JJ): The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review. [Emphasis in original, footnote omitted.] 37 The conclusion will be open where a decision is "manifestly unreasonable", is so unreasonable so as to be "irrational or bizarre" or that no reasonable person could have arrived at it, although it is not limited to such a case: [NAME] at [82] ([NAME] and [NAME] JJ), citing [NAME] v [COMPANY] [1986] HCA 40; (1986) 162 CLR 24 at 41 (Mason J, as his Honour then was); [NAME] at [68] ([NAME], [NAME], and Bell JJ), [105] ([NAME] J). A conclusion of legal unreasonableness may be outcome focussed, and may be applied to a decision which lacks an evident and intelligible justification: [NAME] at [76] ([NAME], and Bell JJ). 38 Legal unreasonableness is fact-dependant and requires a careful evaluation of the evidence: [NAME] at [84] ([NAME] and [NAME] JJ). 39 The Minister submits that, in the absence of any particulars, these grounds of review appear to reflect the applicant's disagreement with the outcome of the Tribunal's factual findings and decision. 40 The applicant was asked in the course of the hearing to identify the respects in which he contended that the decision of the Tribunal on the risk of reoffending was unreasonable and that the Tribunal reached a decision that was unreasonable and illogical. The applicant responded, through his interpreter, that he was only 18 years old when he committed the offence, he is now 27 years old, he now understands the law and his brother has assured him that he will support him in a positive way. He submitted that he has now learned his lesson because of his maturity over the past seven years. 41 These grounds to do not rise above a profound disagreement with the Tribunal's finding that the applicant was a danger to the [NAME]. 42 I am satisfied that the reasons of the Tribunal, as summarised above, disclose that the Tribunal had proper regard to the evidence before it and reached a decision for which there was an evident and intelligible justification. The Tribunal had regard to the evidence before it, in particular the conflicting expert reports expressing opinions as to the risk or likelihood of the applicant reoffending, the seriousness of the applicant's offending and the necessity to assess the danger that the applicant posed to the [NAME] in his present, largely untreated, condition. On no view could the decision reached by the Tribunal be fairly characterised as "manifestly unreasonable" or as "irrational or bizarre". Nor could the decision of the Tribunal be characterised as one that no rational or logical decision maker could have reached on the same evidence: [NAME] v [NAME] (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131] (Crennan and Bell JJ). 43 These grounds of review have not been established.

Additional ground 44 In the course of making oral submissions at the hearing of his application, the applicant appeared to raise an additional ground that was not included in his review application nor raised before the Tribunal. He submitted that the Tribunal, in making its decision, had failed to take into account that he was stateless and may face indefinite detention in Australia if his challenge to the decision not to grant him a protection visa was unsuccessful. 45 The submission was misconceived. As Ms [RESPONDENT], counsel appearing for the Minister, submitted, s 36 of the Act does not require the Tribunal to undertake any balancing of the danger to the community presented by the applicant and competing considerations such as harm to the applicant by reason of any refoulement or that the statelessness of an applicant might lead to indefinite detention. Section 36(1C) provides a mandatory criterion that an applicant for a protection visa must satisfy. The only issue that the Tribunal had to determine in this case was whether the applicant was a danger to the [NAME] for the purposes of s 36(1C). A determination of that issue did not involve any discretionary assessment of any harm to the applicant if a protection visa were not granted. 46 No application for leave to rely on this additional ground of review was made at the hearing. Had such an application been made it would have been refused on the basis that it was not raised before the Tribunal and it had no reasonable prospects of success for the reasons explained above.

Disposition 47 As requested by the Minister, the name of the first respondent is to be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". 48 The application for review is to be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Associate: Dated: 22 August 2022