We are all familiar with the old saying that: “We are haunted by the ghosts of our past”.
This well-worn phrase has been shown to have considerable truth and force recently. There has been story after story in the news media about high profile people being caught up in allegations of sexual abuse involving decades-old incidents. One need look no further than the stories that have been reported about allegations relating to former British Prime Minister Ted Heath and to the television performers Rolf Harris and Bill Cosby. And of course the Royal Commission Into Institutional Responses to Child Sexual Abuse has unearthed accounts of incidents that occurred many years ago.
These types of stories are not only pervasive in the news media. In fact, just at the end of last week, on 7 August 2015, a decision was handed down by the Federal Court of Australia that demonstrates, very powerfully, that there really is no escape from the ghosts of one’s past where sexual offences are concerned, and that events that may have seemed to have been buried and forgotten can come back to haunt a person with an absolute vengeance!
In this case, Cotterill v Minister for Immigration and Border Protection(2015) FCA 802, the Court affirmed a decision by the Minister to cancel the “absorbed person” visa of a man who had been living in Australia for approximately 65 years due to crimes he had committed many (about 40) years previously.
The basis of the visa cancellation was a series of sexual offences that Mr Cotterill had committed against his own children in the 1970s. The most recent of the offences took place in approximately 1976. Mr Cotterill was not prosecuted for these offences until about 2012 (more than 30 years after the events). He pleaded guilty to 5 separate charges of sexual offences in November 2012 (when he was about 71 years old) and was sentenced to 12 months imprisonment on each charge. Each of the sentences was partially suspended. The ultimate result of the prosecutions was that Mr Cotterill was ordered to serve 3 months in jail.
On the basis of these convictions, the Minister found that Mr Cotterill did not satisfy the “character test”, and thus proceeded with action to cancel his absorbed person visa. Mr Cotterill was released from prison in February 2013. He was informed by the Department in September 2014 that it was considering the cancellation of his visa. The Minister cancelled the visa on 22 April 2015, and Mr Cotterill was then taken into immigration detention. Thus, by the time his case was decided in the Federal Court, Mr Cotterill had been in immigration detention for a longer period of time than he was in prison for the underlying criminal offences.
The Minister cancelled Mr Cotterill’s visa on the basis of the convictions for the sexual offences, notwithstanding that certain “countervailing” circumstances were present in the case. These included the fact that Mr Cotterill was seen to have “long and deep ties to Australia”, resulting from his having lived here for a period of 64 years (since he migrated to Australia as a 7 year old child in 1950), his having a partner of 30 years standing who was unwell and required care from him, and his having a great many family members living in Australia. The “countervailing” factors also included that Mr Cotterill was himself in poor health, had spent 38 years living in the Australian community since the time of the offences without committing further offences, and had also lived in the community for 2 years since the time of his release from prison.
Notwithstanding these “countervailing factors”, the Minister saw fit to cancel Mr Cotterill’s visa on the grounds that the sexual offences, having been perpetrated against his children when they were minor children, were “very serious” and on the basis that, notwithstanding the fact that the risk that Mr Cotterill might “re-offend” was considered to be “low”, it could not be said that there was “no” risk at all that he might re-offend.
Mr Cotterill’s challenge in the Federal Court to the cancellation of his visa was based on the claim that the Minister’s decision was “unreasonable”, in the sense that there was no “evident and intelligible justification” for the Minister’s findings that the offences were “serious” and that there was a risk (and not “no risk”) that he might re-offend.
In reviewing the visa holder’s claims, Justice Pagone of the Federal Court followed the recent decision of the Full Court in the case of Moana v Minister for Immigration and Border Protection (2015) FCAFC 54 concerning the applicable legal standard for review of a visa cancellation decision.
In the Moana case, the Full Court held that it is mandatory for the Minister to consider the risk of harm to the Australian community before cancelling a visa on character grounds (in other words, failure to consider the question of “risk” would amount to “jurisdictional error”). However, while the Court also held in Moana that in most cases it will be “centrally relevant” to an evaluation of the “risk of harm” for the Minister to consider the likelihood that the visa holder might engage in future conduct that might cause harm, it is not mandatory for the Minister to consider this factor. Further, in Moana, the Full Court held that certain criminal conduct may be sufficiently serious in and of itself that it warrants and justifies a Ministerial decision to cancel a visa on character grounds, and that no further inquiry need necessarily be taken in such serious criminal cases as to whether there is a likelihood that the visa holder will re-offend or otherwise engage in harmful conduct in the future.
In the particular circumstances of the Cotterill case, Justice Pagone of the Federal Court concluded that the Minister’s decision, while one that might possibly be considered to be “harsh”, was not one that was “unreasonable” in the sense of not having an “evident and intelligible justification”.
Justice Pagone took the view that it was open to the Minister to make a finding that the sexual offences that the visa holder had been convicted of were “serious”, notwithstanding the fact that the sentencing judge in the underlying criminal case had characterized the offences as being at the “bottom end of the scale of sexual offences”. Justice Pagone held that it was not unreasonable for the Minister to determine that the offences were “serious” due to the fact that they were of a sexual nature, had been committed against young children, and were, by their very nature, harmful to the victims.
Likewise, Justice Pagone ruled that it was not unreasonable for the Minister to arrive at the conclusion that there was a risk (albeit a low one), that the visa holder might re-offend. Thus, Justice Pagone found that, notwithstanding the fact that Mr Cottterill had not committed further offences either in the 38 years since the time of the offences, or in the period of time since he had been released from prison, and notwithstanding that he had not been required to undertake a course for sex offenders while in prison, it was open to the Minister to reject a finding that there was “no” risk that the visa holder might re-offend. Ultimately, the Court held that the fact that the visa holder had committed offences in the past was reason enough to support a conclusion that there was “a” risk of future re-offending, however low that risk might actually be.
This case demonstrates, among other things, that the Department and the Minister are apparently determined to pursue visa cancellations where visa holders have committed serious criminal offences and have been sentenced to 12 months in prison or more. That appears to be especially likely where the underlying offences are of a “sexual” nature (and thus inherently serious). In addition, it also appears evident from this case that the Department will take visa cancellation actions even in cases where the visa holder has lived in Australia for many years and has “long and deep” ties to the country, as Mr Cotterill did. The case once again illustrates that non-citizens who commit serious criminal offences are very likely to suffer the “double sanction” of being imprisoned and then deported (and in fact, where the actual time in prison served is relatively short, the loss of the right to remain in Australia may operate as the more severe of the two forms of sanction or “punishment”). As shown by the Cotterill decision, living in Australia from the time of early childhood, and being of advanced and in poor health may not be enough to rescue a visa holder from this consequence!
It will be interesting to see if there is a further appeal against this visa cancellation to the Full Court. So we will have to “stay tuned” for any further developments in this case. Of course, I will provide updates as warranted.