FEDERAL COURT OF AUSTRALIA

Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The costs of the appeal be assessed on a lump sum basis.

3.    If the parties agree on a lump sum figure in relation to the Respondent’s costs, they are to file a joint minute of proposed orders.

4.    In the absence of any joint proposed order:

(a)    within 28 days, the First Respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within 28 days thereafter, the Appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS; and

(c)    the matter of an appropriate lump sum figure for the First Respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant was convicted of child sex offences. His visa was cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth). He sought review of the cancellation decision in the Administrative Appeals Tribunal. The Tribunal affirmed the decision to cancel the appellant's visa. An application for judicial review of the Tribunal's decision was dismissed by the primary judge. The appellant now brings an appeal.

2    In support of his appeal the appellant filed a long form notice of appeal with 15 grounds. He sought leave to amend his notice of appeal in terms of that document. The Minister did not object, save that as to grounds 11 to 15 the Minister submitted that they were not raised below, leave was required to raise them and leave should be refused because they lack merit.

3    The notice of appeal document also contained the written argument that the appellant advanced in support of each of the grounds. The appeal proceeded with the appellant advancing oral submissions to supplement the written argument.

4    A statutory appeal from the Tribunal on a question of law was not available to the appellant: s 43C of the Administrative Appeals Tribunal Act 1975 (Cth). Rather, the application heard by the primary judge was an application to review in respect of a privative clause decision of the Tribunal to which s 500 applied. The jurisdiction in such cases is the same as 'the High Court under paragraph 75(v) of the Constitution': s 476A(2) of the Migration Act. Therefore, before the primary judge the appellant had to demonstrate jurisdictional error in the decision by the Tribunal. The primary judge found that no jurisdictional error had been demonstrated: Applicant WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27.

5    For the following reasons, no error has been shown in the decision by the primary judge. Leave should be refused to advance grounds 11 to 15, primarily because they lack merit. Otherwise, the appeal should be dismissed with costs.

Background

6    The summary of the relevant background by the primary judge was not disputed. Relevantly for present purposes, it was as follows (at [2]-[5], [9]):

The applicant is a 46 year old citizen of India from Tamil Nadu. The applicant was granted a skilled migrant visa. The applicant and his family, comprising his wife, step-daughter (from his wife's previous marriage) and son, immigrated to Australia, arriving on 22 March 2009. The applicant's step-daughter was born in 1995 and his son was born in 2004.

On 11 January 2011, the applicant pleaded guilty to, and was convicted in the District Court of Western Australia of, nine sexual offences against his step-daughter who was then a child. The offences for which he was convicted occurred during the period of 1 February 2010 to 20 April 2010 and were the following:

(a)    "indecent dealings with a child who is a lineal relative or defacto child" - 7 counts;

(b)    "attempted knowingly sexually penetrated a child who was a lineal relative" -   count; and

(c)    "indecently recorded a child who was a lineal relative or defacto child" - 1 count.

The applicant was sentenced to an overall term of 36 months' imprisonment, backdated to April 2010, with a non-parole period of 18 months.

The applicant was charged with the offences as a consequence of his step daughter reporting the applicant's conduct to the chaplain and psychologist at her school.

…

The applicant was released from gaol on parole on 30 January 2013 and was immediately taken into immigration detention, where he remains. To date, the applicant has spent almost eight years in gaol and immigration detention. During that time, he has undertaken a number of courses and activities, including sex offender treatment and rehabilitation programs.

Tribunal decision as to credibility and the risk of the appellant re-offending

7    It is important to note that the Tribunal expressed doubts as to the credibility of the evidence given by the appellant before the Tribunal. In a number of submissions on the appeal the appellant sought to rely upon matters addressed in medical, psychological and other reports. However, the Tribunal noted as to the evidence given by a Dr O'Daly and a Mr Jobson concerning a risk assessment as to the likelihood of the appellant to re-offend that the assessments 'were largely based on information provided by' the appellant himself as well as 'clinical judgment and consideration of relevant background documents'. The Tribunal questioned, in those circumstances, the reliability of reports that depended upon the appellant's account: see the reasons of the Tribunal at para 104. The Tribunal made a finding, contrary to the appellant's submission to the Tribunal, that the preponderant weight of the evidence stood against the proposition that the appellant poses no risk of sexual re-offending: reasons at para 113. It noted that the appellant was held in detention and not exposed to circumstances that may bear upon the risk of him re-offending. Further, it noted that the making of predictions about the risk of re-offending was accepted by both Dr O'Daly and Mr Jobson to be 'somewhat speculative'.

8    After considering the materials before the Tribunal, a conclusion was reached that 'the weight of medical and expert opinion suggests a Low level of risk that the [appellant] will re-offend in the future': reasons at para 117. After considering further matters, the Tribunal concluded that although the risk was Low it was 'an unacceptable risk when it is weighed against the very serious nature of his child sex offences and the potential for great harm to be caused to individuals, and children, should he re-offend': reasons at para 121.

9    Many of the appeal grounds were directed to matters relating to the Tribunal's assessment of the expert evidence and its conclusion concerning the appellant's risk of re-offending.

The nature of the appeal from the primary judge

10    The appeal is a rehearing in which the task for an appellant is to demonstrate error on the part of the primary judge that needs to be corrected: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [22]. Within the constraints marked out by the nature of the appellate process, there must be real review: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25].

11    Unless leave is given to raise a matter that was not advanced before the primary judge, the appeal is confined to matters argued at first instance. In order to grant leave, the Court must be satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319. Matters to be considered in the exercise of discretion to grant leave to raise new grounds on appeal were summarised in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19] (Griffiths, Mortimer and Perry JJ). In addition, if a review ground is raised for the first time on appeal and leave is given to raise the point then the respondent is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] and SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18].

12    The task of the Court when considering whether jurisdictional error has been demonstrated is mostly a legal one with conclusions rarely dependent upon fact finding by the primary judge. Therefore, for the most part, the issue in an appeal of the present kind will be whether the primary judge has failed to consider a matter advanced below or has dealt with a matter in a manner that has been demonstrated to be wrong in law. Nevertheless, it is not the occasion to simply reargue points advanced below. They must be framed by reference to the way matters were dealt with by the primary judge.

13    The appellant appeared in person. Perhaps understandably in those circumstances, many of the matters raised in the appellant's long form notice of appeal sought to present points without regard to the manner in which they had been dealt with by the primary judge. Further, though framed formally as complaints expressed using the language of jurisdictional error, much of the long form notice of appeal comprised references to evidence and submissions advanced to the Tribunal where the gravamen of the complaint was that the Tribunal should have reached a different conclusion on the facts.

14    In addressing the arguments advanced we have considered first the reasons of the primary judge concerning the point raised in order to consider whether, having regard to the matters raised, error has been demonstrated. Further, in those instances where a matter is sought to be advanced that was not argued below, we have considered whether leave should be given.

15    As a number of the grounds raised by the appellant concerned the approach of the Tribunal to fact finding and the conclusion by the primary judge that there was no jurisdictional error associated with those findings, before considering the specific grounds raised we deal with relevant principles concerning jurisdictional error in the context of challenges to fact finding by the Tribunal.

Jurisdictional error and challenges to fact finding by the Tribunal

16    Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': at [24]. Their Honours then described the principle by reference to the analysis by Professor Jaffe in 'Judicial Review: Constitutional and Jurisdictional Fact' (1957) 70 Harvard Law Review 953 and by Selway J in 'The Principle Behind Common Law Judicial Review of Administrative Action - The Search Continues' (2002) 30 Federal Law Review 217 in the following terms:

To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately 'a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised.'

17    The Tribunal is entrusted with statutory authority to make factual findings based upon the material before the Tribunal (no issue arises in the present appeal concerning the limited circumstances in which the Tribunal may have a responsibility to make further inquiries). In doing so, it is a matter for the Tribunal to form views as to whether testimony is credible. However, factual findings of the Tribunal must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[55]. The approach to be applied in considering whether there has been a jurisdictional error of that kind was recently summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

18    The Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282. Facts can be fairly found without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at 395-396.

19    Therefore, jurisdictional error is not demonstrated by advancing submissions to the effect that different factual findings should have been made or the Tribunal was in error in forming a particular view as to credibility. The submission must go further and identify an aspect of the fact finding or approach to credibility that gave the decision a character that took it outside the ambit of the authority conferred on the Tribunal.

20    In considering whether there has been jurisdictional error it must be borne in mind that the requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [53] (Gageler J), [80] (Nettle and Gordon JJ) and [131] (Edelman J). So if it is shown that an exercise of power does not meet an applicable standard of reasonableness that must be met for the valid exercise of the power then there will be jurisdictional error. The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions that apply in the particular case. Therefore, whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the court on review based upon a consideration of the facts of the particular case: SZVFW at [61]-[70] (Gageler), [84] (Nettle and Gordon JJ) and [140]-[141] (Edelman J).

21    As we have noted, in some instances, the complaints raised by the appellant in the appeal were no more than an attempt to revisit the material before the Tribunal and the findings it made and then say that the primary judge was in error in failing to conclude that there was jurisdictional error in relation to the approach to the facts. Complaints of that kind are insufficient to demonstrate error by a primary judge in a case of this kind. In order to demonstrate that there is jurisdictional error associated with the approach to fact finding complaints must go further and show that the Tribunal exceeded its authority by undertaking fact finding in a way that was not authorised or was a failure to perform the statutory task of considering the material.

Ground 1: Alleged failure to give primary weight to interests of appellant's son

22    The appellant said that the primary judge should have found that the Tribunal did not consider properly, genuinely or realistically and give primary weight to the best interests of the appellant's son.

23    The primary judge found that the best interests of the appellant's son was a matter that was given detailed consideration by the Tribunal: at [47]. The submissions advanced on appeal referred to particular parts of the reasons of the Tribunal and particular statements in the evidence. Findings as to matters of fact was a task entrusted to the Tribunal. The question is whether the Tribunal gave genuine and realistic consideration to the issue. No error has been demonstrated in the finding by the primary judge that the Tribunal gave the matter detailed consideration.

24    The appellant also submitted, in particular, that the Tribunal did not consider his evidence that he was going to avoid any contact with children, especially female children. This was a specific aspect of the evidence that formed part of the basis upon which reports were prepared and presented to the Tribunal as to whether he was likely to re-offend. The Tribunal did refer to evidence from the appellant that he would want to move the family to a place where such contact was not possible: reasons at para 130. It was otherwise sufficient for the Tribunal to refer to the evidence concerning the reports in forming its conclusion as to whether the appellant was likely to re-offend by reference to a consideration of the evidence of those with relevant professional expertise who presented their views to the Tribunal. The Tribunal both considered that evidence and based its conclusions upon that evidence.

Ground 2: Alleged failure to afford procedural fairness

25    This ground claims that the primary judge should have found that the Tribunal denied him procedural fairness. Particulars are provided of a number of interactions between the Tribunal and the appellant by reference to the transcript. The transcript of the hearing was not before the primary judge: at [54].

26    The same ground was advanced before the primary judge despite the lack of evidence as to what occurred before the Tribunal. The ground was dismissed in the absence of supporting evidence: at [55].

27    On appeal, no objection was taken to the appellant referring to the transcript extracts.

28    On review of the transcript extracts the matters relied upon reveal that the Tribunal's interventions and questions were of a kind that might be expected. The particulars relied upon fell far short of supporting any submission that the manner in which the Tribunal conducted the proceedings meant that the appellant was not afforded a fair and reasonable opportunity to present his case.

29    The appellant also claimed that he had not understood a portion of the evidence of a psychologist who had prepared a report at his request. That evidence comprised the answers by the psychologist to questions from the Tribunal. The appellant attributed his lack of understanding to his not having had the assistance of an interpreter.

30    In our view, there was no denial of procedural fairness. The appellant did not raise before the Tribunal any issue concerning his ability to understand the psychologist's evidence and the portion of the evidence in issue comprises less than one page in over 280 pages of transcript. Further, it is not apparent that the Tribunal placed any particular reliance on the small portion of the psychologist's evidence which the appellant said he did not understand.

Ground 3: Alleged bias

31    The primary judge found that the appellant had failed to adduce evidence which met the required standard to demonstrate apprehended or actual bias: at [56]-[61].

32    On appeal, the appellant relied upon the following matters to support the ground that the primary judge should have found bias on the part of the Tribunal:

(1)    he complained of the following finding expressed by the Tribunal in what he said were 'definite terms' (reasons at para 72):

Having heard the Applicant's evidence and the evidence of other witnesses, and having reviewed the very extensive documents placed before the Tribunal, it appears to me that much of the evidence on which his case is built relies upon the Applicant's version of events. As I have said, the Applicant has demonstrated determination, tenacity and remarkable acuity in preparing his case. I am sure that he, like so many others, would take any opportunity to advance his case in order to escape from his present predicament. But truth so often resides in the detail; it is not raised on words and cases, alone, but is supported by consistency, plausibility and evidence. And here, in the detail, there is a difficulty with the Applicant's account and, in consequence, questions arise about the reliability of psychological and other reports that rely upon his account being true.

(2)    he said that the Tribunal gave weight to the expert's evidence in some areas and not in others;

(3)    he said that during the course of the hearing the Tribunal inquired why the appellant's visa had been cancelled under s 501(2) and not mandatorily in performance of s 501(3A) because the appellant was a child sex offender;

(4)    he said that the Tribunal did not take account of his evidence about his changed behaviour and reformed character;

(5)    he said that the Tribunal warned his wife that there would be embarrassing questions;

(6)    he said that when the Tribunal asked him 'Do I take it that you are using your wife and son in your mind in making your case' that it showed the Tribunal was not going to give weight to the best interest of his son;

(7)    he said that one of the Serco security staff told him that some of the issues counsel for the Minister had asked the appellant were not questions, but statements;

(8)    he referred to a number of occasions when the Tribunal had told the appellant to ask questions and it was best not to make statements and then frame a question, but there were a number of occasions when Mr Jobson was asked to agree with a particular statement;

(9)    the Tribunal made its decision within a week or two which was not enough time for it to consider everything; and

(10)    there were other cases that dealt with similar issues where the Tribunal had reached a different decision.

33    There were also unparticularised claims that the Tribunal member was 'not sober or receptive and he applied his personal feelings and strong view against my offending and what I was convicted for' and 'did not balance all the evidences before it properly'.

34    The matters relied upon were insufficient to establish actual or apprehended bias and the primary judge was correct to reject the claim.

35    The appellant also claimed that the primary judge was biased. The matters relied upon for that claim did not rise above a disagreement with the correctness of views expressed by the judge in deciding the application. They did not support the ground.

Ground 4: Alleged factual errors

36    Before the primary judge it was alleged that the Tribunal made findings without probative evidence because the findings required expert evidence that was not before the Tribunal.

37    The primary judge provided reasons concerning each finding that was challenged at first instance: at [66]-[85]. In his written materials, the appellant did not seek to demonstrate that the reasoning process of the primary judge was wrong. He simply referred in detail to evidence that was before the Tribunal. This process did not establish error where the fact finding role was entrusted to the Tribunal.

38    In oral submissions, the appellant focussed upon the reasoning by the Tribunal (referred to above) to the effect that, as the appellant had been in detention, the effect that his treatment may have when he was released and able to act freely was a matter that had not been tested. The appellant submitted that the Prisoners Review Board had found that he had finished his intervention program and his low risk of offending meant that he did not pose an unacceptable risk for parole.

39    On the basis of comparing the Tribunal's approach to that of the Prisoners Review Board he submitted that the Tribunal's mind was distorted because it concluded that even though the risk of offending was low it was not acceptable. Further, he said that on the assessments that were made it was not possible to have an assessment that is lower than low and the Tribunal had no expertise to assess that there was a risk that was low but was nevertheless unacceptable.

40    There are a number of problems for the appellant in advancing a complaint in this way.

41    First, the statutory task for the Prisoners Review Board and the Tribunal are not the same. They require decisions to be made in different statutory contexts in which different matters are required to be taken into account in order to advance different statutory purposes.

42    In the case of the decision on parole, there must be regard to the safety of the community as the paramount consideration: s 5B of the Sentencing Administration Act 2003 (WA). In that context, the Act specifies release considerations which include in s 5A(a):

the degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or of any individual in the community;

43    There are other considerations which must also form part of the release considerations. However, it is to be noted that the way the question of risk is framed is that one consideration is the degree of risk. The policy manual of the Prisoners Review Board provides that a decision whether to release a person on parole should be prefaced by a statement that refers to whether release would present an acceptable or unacceptable risk to the safety of the community: see s 3.3.

44    The parole order granted to the appellant follows the statutory language and the language required by the policy manual and states:

In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act, 2003, giving paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to:

1.    The deterrent effect of his first custodial sentence;

2.    Participation and completion of the Medium Sexual Offender Treatment program and has been assessed as low risk of re-offending; and

3.    There is no risk to the victim given she now resides with a different family.

45    In the case of the decision by the Tribunal on review, the Minister has power under s 499 of the Migration Act to give written directions to 'a person or body having functions or powers under this Act' that are not inconsistent with the Act. In undertaking the review provided for by s 500(1)(ba), the Tribunal is such a 'body' and directions under s 499(1) are binding on Tribunal members 'as an overt fetter on discretion': Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65]. The Minister has given such a direction in respect of the exercise of various powers including the power under s 501: Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).

46    Under Direction 65, the Tribunal was required to take account of primary and other considerations relevant to the particular case: para 8. The primary considerations were stated in para 9(1) as follows:

In deciding whether to cancel a non-citizen's visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interest of minor children in Australia;

c)    Expectations of the Australian community.

47    When it comes to risks of re-offending, the Tribunal must consider the protection of the Australian community. This is a matter assessment of which is entrusted to the Tribunal for evaluation. The notion of protection is evidently different to the notion whether there is an acceptable risk to the community.

48    It does not follow from the fact that the appellant was granted parole that no issue of protection of the Australian community arises.

49    Second, a determination made by the parole board could not, in any event, bind the Tribunal. It was required to make its own assessment for the purposes of the Migration Act as to whether the appellant's visa should be cancelled. In making that assessment the Tribunal was required to give effect to Direction 65. It did not require the Tribunal to consider or give effect to a decision made concerning parole.

50    Third, before the Tribunal were documents concerning the process followed in respect of the appellant's parole. Those documents included a Program Completion Report dated 6 January 2012 in which it was stated that the appellant had no history of prior offending in Australia or India.

51    On 22 January 2012, the Prisoners Review Board informed the appellant that his release on parole was denied for the following reasons:

Risk to the safety of the community and risk of re-offending due to:

1.    Serious nature of the sexual offences committed against your 14 year old step-daughter.

2.    Unmet treatment needs (sexual offending);

•    The Board acknowledges your completion of the Sex Offender Medium Program but is not satisfied that sufficient treatment gains were made.

3.    Non-viable parole plan as you are to be removed from Australia upon your release from prison and supervision will be unavailable.

52    The appellant sought a review of the Board's decision. Documents provided in support of the review were before the Tribunal. On 30 October 2012, the appellant was notified:

I have considered the matters raised in your letter including your query regarding the Board's reference in its decision to your non-viable parole plan. The Board determined that your parole plan was non-viable on the basis that you will be removed from Australia. The likelihood of your removal from Australia is not in itself a satisfactory reason for denial of parole. Accordingly I have decided to refer your matter to the Board for further consideration. The Board will consider your application for parole on 13 January 2013.

53    The parole order was made on 16 January 2013 and included the following conditions:

1.    To have no direct or indirect contact with the victim.

2.    No unsupervised contact with females under 16 years of age.

3.    Comply with Australian National Child Offenders Register requirements.

4.    If released from immigration custody into Western Australia he is to immediately report to his nearest Community Corrections Centre.

54    However, what did not form part of the materials was any reasons or findings by the Board when deciding to grant parole. The submission advanced by the appellant in oral submissions was to the effect that the Board decided to release him on parole taking into account the paramount consideration to the safety of the community, but that was a matter not taken into account by the Tribunal. The submission fails to give due acknowledgment to the conditions that were imposed by the Board in releasing him on parole. The conditions show that the Board did not form a view that he was not a risk to the community.

55    Reliance was placed by the appellant upon the decision in Coker v Minister for Immigration and Border Protection [2017] FCA 929 where Moshinsky J considered a challenge to a decision by the Assistant Minister under s 501CA(4) to decline to exercise the discretion to revoke the cancellation of a visa that had occurred pursuant to s 501(3). In that case, the question was whether the Minister had failed to perform the statutory task of considering the matters raised by way of representations which included a letter from the parole board and a Queensland Corrective Services Report: at [50]. It was found that the failure to consider the submissions and information concerning the Parole Board's decision to release the appellant on parole was a constructive failure to exercise jurisdiction: at [57].

56    It is to be noted that where representations are made pursuant to s 501CA(4), the process is quite different to that which is followed where, as here, the Tribunal is dealing with an application to review an exercise of the discretion to cancel a visa under s 501(2) (noting that if the duty under s 501CA(4) is discharged by a delegate of the Minister then the decision is amenable to review in the Tribunal). Unlike the case of the initial decision by the Minister or delegate under s 501CA(4), the Tribunal conducts a hearing at which the appellant may give evidence and make oral submissions. The Tribunal provides reasons that reflect the nature of the issues that emerge from that process.

57    Importantly, having regard to the nature of the reasons that are required, the fact that reasons do not refer to a particular matter may be the consequence of the fact that the Tribunal considers the circumstances in which parole was obtained not to be material to its decision.

58    The precise terms in which a statutory obligation to give reasons is expressed provides a critical framework in considering the legal significance to attach to findings made: Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [42] (Griffiths J) and Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [30]-[31] (Flick J).

59    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], Gleeson CJ said in relation to the requirement to give reasons under s 430 of the Migration Act:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.

60    Likewise, in this case the Tribunal was required to give reasons that set out its findings on any material questions of fact: s 43(2B) of the Administrative Appeals Tribunal Act. The reasons disclose why the Tribunal did not rely upon the circumstances in which parole was obtained. The Tribunal formed an adverse view concerning the information that the appellant had provided concerning his past offending, including information that had been provided in his application for parole.

61    At paras 41 to 48 of its reasons the Tribunal found:

The Applicant has provided the Tribunal with very extensive materials, statements and affidavits.

As will appear, I have formed the opinion that there are striking and important inconsistencies in the present materials, which I will address below, and these bear upon the reliability of the Applicant's written and sworn oral evidence.

The present materials establish that the Applicant was asked about prior sexual conduct and offences, and he denied on at least two occasions that he had any previous history of sexually inappropriate behaviour or offences of that kind. This information was inaccurate and incomplete.

A Treatment - Sex Offending Checklist created on 16 February 2011 , contains the following entry:

"[The Applicant] stated that the current offences are the first time he has been engaged in any sexually inappropriate behaviour.

Reported in the Judge's Sentencing remarks is an indication that the Department of Child Protection have concerns that some inappropriate behaviour occurred prior to the current offending. [The Applicant] would not discuss this further during the interview and claimed that his current offending was the first time."

In his application for parole on 22 August 2011, the Applicant referred to committing the offences against the Daughter "on two occasions between 31 January 2010 and 21 April 2010", and said "I have no other offending history and have been recognised as trustworthy". The Applicant makes much of his record of good conduct in prison and in detention.

These denials notwithstanding, the Applicant has subsequently admitted to sexual conduct involving the Daughter when she was 12 or 13 years old in 2008 in India, in consequence of which the Wife arranged his mother to stay at their house "to make sure [the Daughter] was okay" if the Wife was absent. These matters were disclosed by the Daughter and the Wife.

The Applicant commenced the Sex Offender Medium Program in June 2011 and it appears that he maintained his denial of prior sexual conduct involving the Daughter until August 2011, at least. The Program Completion Report dated 6 January 2012 (the Completion Report) states that "[The Applicant] has no prior offending history in Australia or in India".

To my mind, the incorrect information the Applicant provided cannot be passed off on grounds of linguistic difficulty or a narrow legal meaning of 'offence'. When the documents are carefully considered, the questions asked of the Applicant are quite clear; so, too, are the Applicant's denials.

(Footnotes omitted).

62    Having regard to the reasons provided by the Tribunal it is readily apparent that the Tribunal formed the view that the information that had been provided in support of the application for parole was not reliable. This is not a case where the information has been ignored. Rather, it has been considered and has been disregarded for considered reasons. The findings made by the Tribunal ultimately led it to conclude that 'having reviewed the very extensive documents placed before the Tribunal, it appears … that much of the evidence on which his case is built relies upon the [appellant's] version of events'. As a consequence the Tribunal found expressly that questions arose as to the reliability of reports that relied upon the appellant's account. In particular, these general conclusions based on other findings were expressed as leading to questions arising about the reliability of 'psychological and other reports that rely upon his account being true': at para 72. In context, this statement includes the reports prepared as part of the process of considering whether to grant parole.

63    For those reasons, the present case is distinguishable from Coker v Minister for Immigration and Border Protection.

64    Fourth, the appellant was never released on parole. He qualified for parole, but was taken into immigration detention. So, the Tribunal's observations to the effect that it was not known what may happen if he was released which provided part of the basis for its decision was a matter on which the terms of the Board's decision concerning the appellant's parole was not relevant.

65    For all these reasons, ground 4 is not made out.

Ground 5: Alleges failure to consider mitigating factors

66    The primary judge found that the mitigating factors referred to by the appellant were matters referred to in the reports considered by the Tribunal and were considered as part of the process of considering his risk of re-offending.

67    The appellant advanced particular matters in reports and submissions that were said to be matters that were not considered. However, having regard to the manner in which the Tribunal approached the credibility of his evidence and addressed the evidence through the reports of those who gave evidence to the Tribunal, it was not to be expected that the Tribunal would refer to earlier reports based upon information that had been provided by the appellant.

68    The appellant advanced a submission that his diagnosed condition of body dysmorphic disorder by reason of an extreme level of insecurity related to his perception of his penis size was not considered as a crucial mitigating factor. However, evidence as to his condition was considered by the Tribunal: at [116]. The appellant submitted that the evidence was only addressed in considering his risk of offending and not when considering the seriousness of his conduct. This submission misapprehends what is involved in evaluating the seriousness of his child sex offences which is a matter that primarily requires focus upon what he has done and the consequences for others, not necessarily matters that might be said to be mitigating. It was open to the Tribunal to proceed in the way that it did.

Ground 6: Alleged failure to consider significant evidence

69    The primary judge addressed this ground which was a complaint that the Tribunal did not address his claim that he will not present an unacceptable risk to the safety of the Australian community. The primary judge found that contrary to the contentions advanced the Tribunal did not focus exclusively on the nature of his offending conduct and his inappropriate behaviour towards his step-daughter in India in assessing his risk of re-offending: at [106]-[107]. Reference was again made to a failure to refer to the decision of the Board concerning parole being a matter that has already been addressed above.

70    No error has been demonstrated in the conclusion by the primary judge.

Ground 7: Alleged failure to take into account matters in cl 9.1.2(2)(b) of Direction 65

71    Clause 9.1.2(2)(b) of Direction 65 provides:

In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

72    These matters were addressed in detail by the Tribunal. The ground sought to do no more than disagree with the outcome before the Tribunal and refer to evidence as to why a different conclusion should be reached. Approaching the matter in that way does not demonstrate jurisdictional error by the Tribunal or error by the primary judge.

Ground 8: Alleged unreasonableness and illogicality

73    The primary judge addressed this ground by reference to matters relating to the decision on parole. It appears that the matter was presented in that way below. For reasons already given, there was no merit in those matters. The primary judge was correct to find that the Tribunal's approach to dealing with the significance of the decision concerning parole was not affected by unreasonableness or irrationality.

74    In oral submissions, the appellant emphasised that he had been to three different churches in the community. He described being 'escorted' to church services 71 times. He said that the Tribunal had not taken into account his behaviour on those occasions. However, the Tribunal's finding was to the effect that it was not known how he would operate 'as a free agent': para 113. Behaviour of the appellant when he was being escorted would not be relevant to forming a conclusion about how the appellant might behave when he was free of such constraints. The failure to refer to evidence of such occasions does not demonstrate unreasonableness.

Ground 9: Alleged failure to take into account employment links

75    The primary judge found that the matters relied upon to support the ground were matters that had been taken into account by the Tribunal: at [126]. Error has not been demonstrated in the conclusion of the primary judge.

76    Reliance was placed upon things the appellant has done while in immigration detention (and after the decision of the Tribunal). There could be no criticism of the Tribunal in failing to take those matters into account. It is not for this court on appeal to consider further material that was not before the Tribunal for the purpose of demonstrating that there should be a different conclusion reached having regard to current circumstances.

Ground 10: Alleged failure to consider character references

77    The primary judge found that the matters relied upon to support the ground were matters that had been taken into account by the Tribunal: at [131]. No error has been demonstrated in the conclusion of the primary judge.

Grounds 11 to 15

78    Ground 11 claims that the primary judge should have found that there was a denial of procedural fairness by the Tribunal in contravention of s 424AA and s 425. Those sections did not apply in this case where review was sought of a decision made under s 501 and the proceedings in the Tribunal took place under s 500.

79    Ground 12 claims that the primary judge should have found that new evidence was admissible. It was not shown that there was evidence that the Tribunal should have received that it refused to receive.

80    Ground 13 claims that the Tribunal focussed on making adverse findings. This ground sought to invite the Court to review certain parts of the evidence. It was not a claim of error by the primary judge nor did it raise matters that would support a claim of jurisdictional error.

81    Ground 14 claims that the primary judge should have found that the Tribunal should have set aside the decision to cancel the appellant's visa in the national interest. The nature of the decision to be made by the Tribunal did not require any consideration of the national interest.

82    Ground 15 claims that the primary judge erred by failing to find jurisdictional error by the Tribunal 'misunderstanding, misconstruing, misconceiving or misinterpreting the evidence before it'. In support of the ground, reliance was placed on various aspects of the evidence compared to the findings. These claims were, in terms, challenges to the factual finding of the Tribunal. For reasons given above, jurisdictional error cannot be demonstrated in this way.

83    For the above reasons, none of grounds 11 to 15 have merit.

84    As none of the matters dealt with in grounds 11 to 15 were raised before the primary judge, the appellant needs leave to advance them. As we have noted, the Court must be satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal. There is no explanation as to why the grounds were not raised before the primary judge. The grounds lack merit. For those reasons leave should be refused.

Approach by the Tribunal to non-refoulement obligations

85    In its reasons at paras 143 to 154, the Tribunal dealt with non-refoulement obligations. It introduced its consideration of those matters as follows:

The Applicant argues that he will be exposed to threat of harm as a convicted child sex offender and as a Christian if he is returned to India.

He has applied for a protection visa. Proper consideration of his protection visa application is not yet finalised - the RRT decision rejecting the application has been set aside by the Federal Circuit Court of Australia and remitted to the Tribunal to be determined according to law.

It follows that issues of non-refoulement will properly be addressed by the Tribunal when determining afresh the Applicant's claims in respect of his application for a protection visa. Strictly, under paragraph 10.1(4) of the Directions, it is not necessary to consider this issue any further.

Nevertheless, it is appropriate to say something about the present evidence relevant to this consideration.

86    There was no issue raised by the appellant before the primary judge (or by the grounds of appeal) concerning the way the Tribunal dealt with non-refoulement. However, given the way in which the matters had been addressed by the Tribunal, we made directions for further submissions concerning the adequacy of the Tribunal's consideration of Australia's international non-refoulement obligation. This was done to allow the parties to make submissions as to the relevance, if any, of matters addressed in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 and Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.

87    As we have noted, in making its decision the Tribunal was required to comply with Direction 65: see s 499(2A) (subject to the terms of s 499(2) which expressly stated that the Minister was not empowered to give directions that were inconsistent with the Act).

88    Clause 10.1(4) of Direction 65 provides that:

Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizens for the purposes of determining whether their visa should be cancelled.

89    Direction 65 deals with two types of cases where a visa might be refused or cancelled on character grounds. First, those where consideration is being given to whether a visa should be refused or cancelled under s 501. Second, those where the issue being considered is whether there should be a revocation of a visa cancellation in the exercise of the power conferred under s 501CA(4) (which applies to cancellations in performance of the statutory duty to cancel expressed in s 501(3A)).

90    In BCR16 a decision had been made to refuse to exercise the power conferred by s 501CA(4) to revoke the cancellation of a visa. One of the matters raised in the representations as to why the cancellation should be revoked was a concern that the applicant would be harmed if returned to his place of nationality. The reasons for refusing to cancel included a statement to the effect that as the applicant was not prevented from making an application for a protection visa, it was unnecessary to determine whether non-refoulement obligations were owed to the applicant: at [16].

91    Bromberg and Mortimer JJ reasoned that there were circumstances in which a person whose visa had been cancelled on character grounds might not have risks of harm to them if returned to their country of origin evaluated if they applied for a protection visa. In part that was because such an application might itself be refused on character grounds: at [36]-[46], [52]. Therefore, it was held to be incorrect to approach the question whether to revoke the cancellation of the visa on the basis that non-refoulement obligations could and would be addressed on an application for a protection visa. It was also found that the claim of risk of harm that had been relied upon in the representations was not confined to a risk of refoulement and the decision had been made without considering that aspect of the claim: at [70]-[75].

92    It was held that in order for there to be a valid exercise of the statutory power under s 501CA(4), it was necessary to consider any risk of harm if the person was to be returned to his or her place of nationality where that risk has been raised by the person concerned. Their Honours characterised the error that arose from a failure to consider the risk of harm as a failure to carry out the statutory task of considering whether there was 'another reason' to revoke the visa cancellation: at [62]-[75].

93    So, given the terms of para 145 of the Tribunal's reasons where it expressed the view that it was not required to consider the issue of the threat of harm to the appellant if he was returned to India, the question which arises in the present case is whether the Tribunal failed to perform the statutory task in the manner found in BCR16.

94    There are a number of respects in which the present case is not the same as BCR16. An issue arises as to whether there is any significance to be given to the differences which are:

(1)    in the present case the Tribunal was bound by Direction 65 which did not apply to the Assistant Minister in BCR16 (see Bochenski at [79] (Bromwich J, Bromberg and Charlesworth JJ agreeing));

(2)    the decision in the present case was made under s 501 whereas the decisions under consideration in BCR16 and BHA17 were made under s 501CA;

(3)    in the present case, the Tribunal did go on and consider the evidence concerning the claimed harm, whereas that did not occur in BCR 16; and

(4)    in the present case there was a separate application for a protection visa, consideration of which was still pending, which was not the case in BCR16 or BHA17.

95    We deal with each of these four points below.

Point (1): The significance of Direction 65

96    In FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, Kenny J considered the significance of Direction 65 for an argument based upon BCR16 and observed as follows at [34]:

The Tribunal, like the delegate, has a statutory obligation to comply with Direction No 65: s 499(2A); see also Rokobatini v Minister for Immigration and Multicultural affairs [1999] FCA 1238; 90 FCR 583 at [38]. A failure to comply with a direction under s 499 can constitute a jurisdictional error: see, for example, Williams v Minister for Immigration and Border Protection [2014] FCA 674 at [34] and the authorities there cited. Section 499(1) does not, however, empower the Minister to give directions that would be inconsistent with the Migration Act: s 499(2). A direction that is inconsistent with the Migration Act is not only made without statutory authority, it is made contrary to the Act. It is invalid: see also Suleiman at [43]. The error of the kind identified in BCR16 did not depend on the fact that the decision-maker in that case was not subject to Direction No 65 or an equivalent direction under s 499 of the Migration Act. Rather, the identified error arose from a mistaken appreciation of the statutory scheme, in that the decision proceeded on the false basis that any claimed risk of harm that might support a non-refoulement obligation would fall for consideration if and when the applicant made a protection visa application. Adherence to paragraph 14.1(4) of Direction No 65 would require a decision-maker to make an error of the same kind. That is, this paragraph in substance required the decision-maker, here the Tribunal, not to perform the task required of the decision-maker by the Migration Act since it would require the decision-maker not to consider the significance of such a claim in the context of making a decision under s 501CA(4)(b)(ii): see [28] above.

The reference in the middle of the passage is to Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

97    Therefore, if the Tribunal failed to consider the claim by the appellant about the threat of harm on the basis that Direction 65 required that approach then the terms of Direction 65 would not have protected that approach from being reviewed for jurisdictional error on the basis of the matters decided in BCR16.

Point (2): Application of BCR16 to decisions under s 501

98    Under s 501(1), (2) or (3), the Minister's discretion whether to cancel or refuse to grant a visa (as the case may be) is unconfined. The discretion arises if the stated conditions are satisfied, but is otherwise a discretion that is to be exercised having regard to considerations limited only by the scope and purpose of the Act. In the case of a decision under s 501CA(4), there is an obligation to consider matters raised in representations made in response to the statutorily mandated invitation: Hay v Minister for Home Affairs [2018] FCAFC 149 at [9]-[15]. The circumstances in which a party may be invited to make submissions relating to an exercise of the power under s 501 may be different especially as the power may be exercised by the Minister personally or by a delegate of the Minister or by the Tribunal on review of a decision by the delegate. Further, there is no equivalent to s 501CA(3)(b) which requires the Minister to invite representations about revocation, a matter that informs that nature of the statutory task being undertaken under s 501CA(4).

99    However, there would appear to be no material distinction between a decision whether to exercise the power under s 501 and a decision whether to revoke the cancellation in the exercise of the power under s 501CA(4) when it comes to an applicant who raises a concern about harm if there was to be a decision made that resulted in the removal of the applicant to his or her place of citizenship. It is erroneous to approach the issue of harm on the basis that any applicant can apply for a protection visa and any harm will necessarily be considered as part of the consideration of the application for a protection visa. Therefore, the logic of that aspect of the reasoning in BCR16 applies to a decision under s 501.

Point (3): The way the Tribunal approached the issue of harm in the present case

100    It is to be noted that if the appellant raised any matter to support an application before the Tribunal then he was obliged to place material before the Tribunal to support that matter: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [40].

101    There is no real suggestion that the Tribunal failed to consider the material that was advanced by the appellant before the Tribunal to support his claim of risk of harm (see below). Rather, the complaint raised by the appellant concerns the conclusion that was reached by the Tribunal concerning the risk of harm. In that regard, after considering materials presented to the Tribunal, it concluded (at paras 153 and 154) as follows:

All this notwithstanding, in general terms it is conceivable that the Applicant may encounter prejudice as a result of his criminal record of child sex offences in Australia if he is forcibly returned to India. It appears that there may be a climate of intense hatred for sex offenders in India. In view of this, it is possible that he may experience psychological, financial and vocational hardship and it is possible that he may be exposed to threat of harm or violence from the Daughter's family or others, as he asserts.

On the available materials and the present evidence, these possibilities are not presently made out. Matters of this kind will be considered afresh by the Tribunal (differently constituted) when dealing with the application remitted by Lucev J. That consideration will be based on the materials placed before the Tribunal in those proceedings. I need go no further on this point.

(Footnote omitted)

102    It can be seen that the Tribunal reached a reasoned conclusion on the basis of material presented that the claimed harm was not made out. The Tribunal's factual finding was that the appellant had not made out the claim. In those circumstances, the Tribunal undertook the task that the reasoning in BCR16 required. For that reason, there was no jurisdictional error in the way in which the Tribunal dealt with the issue of claimed exposure to a threat of harm if the appellant was returned to India.

103    In his further written submissions concerning BCR16, the appellant claimed that the Tribunal 'did not give genuine, realistic and careful consideration to the harm he would face if returned to India on the basis of those submissions and materials placed before it'.

104    However, the submissions did not identify particular matters that were advanced before the Tribunal that were not considered. The appellant did raise a complaint about the manner in which the Refugee Review Tribunal dealt with his claim for a protection visa, but that was a matter that was irrelevant to his application before the Tribunal that is the subject of the present appeal.

Point (4): Pending application for a protection visa

105    In the present case, the appellant had a pending application for a protection visa. When the application to review the decision cancelling his visa came on for hearing by the Tribunal, a decision by the Refugee Review Tribunal on his application for a protection visa had been set aside by the Federal Circuit Court of Australia and the matter had been remitted for consideration according to law. The issue is whether the availability of a consideration of the issues of harm at that hearing meant that it was a matter that did not need to be considered by the Tribunal on the application the subject of the present appeal.

106    As we have noted, the reasoning in BCR16 included a conclusion that an application for a protection visa would not consider all matters of harm (described in BCR16 as the universe of harm). There were a number of reasons advanced in BCR16 as to why that was the case. One was that a protection visa might be rejected because a person did not pass the character test. Another was that the harm that might be advanced as a reason why a visa should not be cancelled under s 501 (or a cancellation should not be revoked under s 501CA(4)) was not confined to harm that would give rise to non-refoulement or complementary protection obligations.

107    In a case where (a) the harm relied upon as to why a visa should not be cancelled or a cancellation not revoked (as the case may be) was characterised as harm that would give rise to a non-refoulement obligation; and (b) consideration had been given to whether that harm would support a protection visa and the claim had been considered and rejected in the context of the protection visa application, then that may be a reason why the Tribunal could conclude that the claim did not provide a reason why the visa should not be cancelled (or the cancellation should not be revoked): see the consideration of the distinction in Minister for Immigration and Border Protection v BHA17 at [78]-[80].

108    However, there are many different scenarios where a claim of a risk of harm arising if a person was to be returned to a place of citizenship may not be coincident with a claim that the harm gives rise to non-refoulement obligations that might be a matter that must be considered by the decision-maker based upon the reasoning in BCR16. Therefore, the mere fact that there is an actual application on foot for a protection visa would not be a sufficient reason, of itself, for the Tribunal not to consider the claim of harm.

109    Reliance was placed by the Minister on the decision of McKerracher J in BNVM v Minister for Immigration and Border Protection [2018] FCA 131 where his Honour considered an application to review a decision of the Tribunal to affirm a refusal of a bridging visa. In considering whether BCR16 might apply his Honour distinguished the decision for two reasons (at [53]):

(a)    First, the question of the applicant applying for a protection visa was not a matter of speculation. The applicant had applied for a protection visa. That protection visa application had been refused by a delegate on the basis that the delegate was not satisfied that protection obligations were owed to the applicant and the applicant had applied for (separate) merits review in the migration division of the Tribunal.

(b)    Secondly, the Tribunal specifically noted that there was 'little evidence before the Tribunal that Australia owes any obligations in this regard to [the applicant] and no evidence to suggest he cannot be returned to India due, for example, to health or any other legitimate concerns' (at [87]). In fact, as the applicant had been refused a protection visa the evidence before the Tribunal suggested that non-refoulement obligations were not owed.

110    We take these observations to be concerned with a case where the harm alleged was of a kind co-incident with a claim of non-refoulement. For reasons we have given, we agree that a failure to adduce evidence to support a claim of harm would mean that the foundation to demonstrate an error of the kind described in BCR16 would not be established. There is no jurisdictional error in failing to consider a claim that is not supported by the material before the Tribunal. Otherwise, it depends on the circumstances in each case whether the fact that a protection visa application has been considered and the claimed harm has been rejected as a basis for a protection visa will mean that there is no error of the kind identified in BCR16.

111    For reasons we have given, the question whether a failure to consider a claim of harm in circumstances where there is a pending application for a protection visa constitutes a jurisdictional error will depend on the facts and circumstances. However, in this case, there is no error because the Tribunal considered the matters advanced to support a claim of harm and made a within jurisdiction decision that they were not made out.

Conclusion and costs

112    For the above reasons, leave should be refused to raise grounds 11 to 15 and grounds 1 to 10 should be dismissed. The appeal having been unsuccessful and no particular matters having been raised as being relevant to the discretion as to costs, there should be an order for costs in favour of the Minister. Orders should be made for costs to be assessed on a lump sum basis: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [58].

Associate:

Dated:    30 November 2018