FEDERAL COURT OF AUSTRALIA

Anees v Minister for Immigration and Border Protection [2020] FCAFC 28

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to file a Further Amended Notice of Appeal and to rely on an appeal ground particular not advanced before the primary judge.

2.    The appeal is upheld.

3.    The orders of the primary judge made on 8 February 2019 save for the orders as to costs are set aside, and in lieu thereof the decision of the Second Respondent is quashed and the matter is remitted to the Second Respondent for determination according to law.

4.    In the absence of agreement between the parties on the question of the costs of the appeal and the order as to costs made by the primary judge, each party file and serve a short written submission (of 2 pages or less) on or before 10 days after the making of this order.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    This appeal arises out of an application by the Appellant for a Partner (Temporary) (Class UK) visa (Visa). On 21 September 2016, a delegate of the Minister for Immigration and Border Protection (as the Minister was then styled) (the Delegate) refused to grant the Appellant the Visa on the basis that the Delegate was not satisfied that he passed the character test in s 501 of the Migration Act 1958 (Cth). Following that decision, the Appellant was taken into immigration detention as an illegal non-citizen, where he has since remained.

2    The Appellant applied to the Administrative Appeals Tribunal (AAT) for review of the Delegate’s decision to refuse him the Visa. The AAT upheld the Delegate’s decision. However, on 28 August 2017 the Federal Court of Australia, by consent, quashed that decision and directed that the Appellant’s application be remitted to the AAT for determination according to law. In 2018 a reconstituted AAT (the Tribunal) conducted that review and it upheld the Delegate’s decision (the Tribunal Decision).

3    The Appellant applied to this Court for an order setting aside the Tribunal Decision. On 8 February 2019 the primary judge dismissed that application: Anees v Minister for Immigration and Border Protection [2019] FCA 84. It is from that decision that the Appellant now appeals.

4    The primary judge summarised the circumstances in which the question of the Appellant’s disputed entitlement to a Visa had arisen as follows:

1    In 2007, the applicant came to Australia to study a Diploma of Commerce with the intention of undertaking a Bachelor of Commerce. He was granted entry pursuant to a student visa, and was later granted work rights on his student visa. In 2007-2008, he was a successful and involved student.

2    In August 2008, the applicant met his partner, whom the Tribunal called ‘Valentina’. She had some serious medical conditions, and the applicant chose to drop out of Deakin University, where he was studying his Bachelor of Commerce, to help her with her recovery. However, as he was no longer enrolled as a student, his student visa was no longer valid. The pair remain together, and are engaged. They claim that they plan to marry once the visa situation is resolved. Valentina suffers from multiple serious mental health issues.

3     From 17 January 2011, the applicant was charged with a number of offences. A full table of the developments in the relevant time period is available at [9] of the Tribunal’s reasons. It is unnecessary to refer to the detail of them. It suffices to say that the applicant shoplifted food, drink and medication for himself, as well as presents for Valentina. He also used credit card numbers he claimed to have found in a room in which he was staying to order goods online to a value of nearly $2,000. The Tribunal also emphasised three other offences: possession of a controlled weapon without excuse, recklessly causing injury, and threatening to inflict serious injury and assault with a weapon.

5    That background is not in dispute. We now turn to address in outline how the matter was dealt with before the Tribunal and the learned primary judge.

The Tribunal Decision

6    The Tribunal upheld the Delegate’s decision. The Tribunal considered many matters raised by the Appellant’s application for review. However, the only matter relevant to the Appellant’s grounds of appeal in this appeal is the Tribunal’s assessment and determination of the risk of the Appellant reoffending. It is only necessary to elaborate on the Tribunal’s decision in so far as it relates to that issue.

7    By reference to the “hard times” experienced by the Appellant in 2010-2013 (a time when he was homeless and charged with taking care of his partner “Valentina”), the Tribunal found that there was more than a minimal or remote chance that the Appellant would engage in criminal conduct were he to form the view that “someone or something required his attention above all else and regardless of the consequences to others”. For this reason the Tribunal found that the Appellant did not pass the character test. This was predicated on the Tribunal’s finding that the Appellant had made choices as to where his priorities lay motivated predominantly by his assessment of his partner Valentina’s needs, in priority to his obligations to his employers, or to the obligations imposed by the terms of the Visa. In that respect, the Tribunal stated at [22]-[23]:

[22]    Homelessness may be a state in which a person finds him or herself through circumstances over which he or she has had no, or very little, control. [The Appellant] was not a person in that position. He met the love of his life and the love of his life needed a great deal of care. [The Appellant] met her at a time when he had obligations to meet as a result of the conditions on the visa that permitted him to come to, and remain in, Australia for the duration of his studies. [The Appellant] made choices as to where his priorities lay. He appears to have given no thought to being able to balance Valentina’s needs and his obligations to his employers or to those imposed under his visa. Does it mean that, if hard times come again, will he repeat his actions so that he steals to support himself? The evidence of Mr Warren Simmons, a Consulting Psychologist, does not answer that question. His evidence is that [the Appellant’s] behaviour seems to have arisen from a particular set of circumstances and that he appears to be at a low risk of offending. Mr Simmons could not otherwise make a prediction of [the Appellant’s] behaviour in the future.

[23]    In view of all of the evidence, I have come to the view that there is more than a minimal or remote chance that he would engage in the same sort of conduct were he again to form the view that someone or something required his attention above all else and regardless of the consequences to others. Therefore, I find that, in the event the event that [the Appellant] were allowed to enter or to remain in Australia, there is a risk that he would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i). Therefore [the Appellant] does not pass the character test and I must consider whether I should exercise the discretion to refuse to grant him a Partner (Temporary) (Class UK) visa under s 501(1).

(Emphasis added)

8    Although the Tribunal acknowledged that the Appellant’s circumstances had improved since the period of offending in 2013, and that he had not offended since 16 May 2013, the Tribunal (at [41]) found that there remained a risk that the Appellant would make unwise judgments and revert to offending if his situation were to change:

[41]    What concerns me, however, is if the situation in which [the Appellant] finds himself is not that which I have posited. His past homelessness and offending and their pattern lead me to conclude that there remains risk that he will make unwise judgments and revert to offending if his situation were to change. He continued to make those unwise choices after he was granted a Bridging Visa E without working rights. As hard as that was, he had at least one choice open to him other than to commit further offences although I recognise that the choice took the form of his returning to Pakistan and leaving Valentina if only in the short term.

(Emphasis added)

9    It is evident from the above finding that the Tribunal’s assessment of the risk of the Appellant reoffending was made on the basis of an express contingency, namely were the Appellant to find himself in a situation which is “not that which I have posited” or as described at [23], “were he again to form the view that someone or something required his attention above all else.”

10    However, where, as here, it is implicitly accepted that the actuality is that the visa holder does not pose a threat and would do so only if the identified contingency were to be realised, for such reasoning to be analytically sound it behoves the decision-maker to assess the likelihood that the contingency may be realised. Without an assessment of that likelihood, the apprehension of risk founded upon the supposed contingency is no more than an acknowledgment that it is possible that the contingency may arise again in the future. The question for the Tribunal was not to conceive of what might happen on the basis that “anything is possible”, but to consider whether the Appellant posed a risk of reoffending. Given that the Tribunal’s reasoning in this regard was predicated on the realisation of the contingency, it could not rationally arrive at a conclusion about that risk without considering and assessing the risk that the contingency may arise.

11    It is against this background that the appeal falls to be considered.

The primary judge’s judgment

12    The ground of judicial review relied upon by the Appellant before the learned primary judge was that the Tribunal failed to consider material evidence relevant to the assessment of the Appellant’s risk of reoffending, namely a report from a psychologist, Mr Warren Simmons and a letter from Dr Eric Salter. The primary judge considered the circumstances in which the letter of Dr Salter was tendered, namely as forming part of the material that was provided to Mr Simmons for the purpose of expressing an opinion as to the question he was asked to consider.

13    The primary judge considered (at [22]) that it would have been wrong and unfair of the Tribunal to use the letter as an independent basis for a finding in favour of the Appellant, otherwise than as material Mr Simmons took into account. Further, the primary judge found (at [23]) that even if it was to be concluded that there was a failure to consider Dr Salter’s letter, it was not of such apparent value that failing to consider it amounted to jurisdictional error. For reasons we deal with in more detail below, the primary judge dismissed the Appellant’s application with costs.

Appeal to the Full Court

14    The Appellant’s Amended Notice of Appeal, filed on 30 October 2019, was in the following terms:

Grounds of appeal

1.    That the Federal Court erred in failing to find that the Tribunal committed jurisdictional error in failing to consider “relevant, material and significant” evidence and representations.

Particulars

i.    The December [2016] letter from Dr Eric Salter was directly relevant to the assessment of [the Appellant’s] character, including – but not limited to – the assessment of his risk of future offending. Despite its manner of tender, it required consideration independent of Mr Simmons’ evidence.

ii.    If the Tribunal were only going to consider the evidence of Dr Salter by reference to Mr Simmons’ evidence, to avoid practical injustice, they were required to inform [the Appellant] of this approach.

15    Having regard to that single ground, the sole issue before the Full Court was initially whether the learned primary judge had been wrong to hold that the Tribunal had not erred by failing to consider Dr Salter’s letter as relevant and significant evidence in the Appellant’s favour, and/or by failing to have informed the Appellant that its reception of Dr Salter’s letter as an exhibit in the proceeding was only for a limited purpose.

16    There was also potentially a question as to whether, if the Full Court were to find (contrary to the conclusion of the primary judge) that the Tribunal had so erred, that error could reasonably have affected the outcome of the Appellant’s review.

17    In the course of the hearing, the Appellant sought leave to raise a new ground of appeal. The Court gave the Minister an opportunity to consider the new ground and file written submissions. In those submissions the Minister communicated his consent to such leave being granted. The Court granted the leave sought, having regard to the relevant principles for the grant of leave to raise a new ground of appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588; Singh v Minister for Immigration and Border Protection [2018] FCAFC 52; 261 FCR 556 at [57]-[58] (Griffiths and Moshinsky JJ).

18    The Appellant’s new ground of appeal has taken the form of a third particular to the single ground in the Amended Notice of Appeal which we shall call the “character ground”:

iii.    That the Tribunal had character evidence from Alexander Hipwell, Kashif Naseem, John Orre and Cristopher Kingsbury but failed to take proper account of that character evidence as relevant to the risk of future offending.

19    For the reasons set out below, the Court has concluded that the appeal should be upheld on the basis of the character ground of appeal. It is therefore convenient to first address the issues raised by this ground of appeal.

character ground of appeal

The Appellant’s submissions

20    In broad outline, the Appellant submitted that a necessary part of an assessment as to the risk of criminal conduct in the future for the purposes of s 501(6)(d), is an assessment of the character and circumstances of the individual both at the time of the offending and at the time of assessment. And further, that a substantial body of character evidence was placed before the Tribunal to demonstrate that the Appellant was of good character and did not pose a risk of reoffending which included evidence of Mr Simmons and of those whom we shall call the “character witnesses”: Mr Alexander William Hipwell, Mr Kashif Naseem, Mr John Orre and Mr Christopher Kingsbury. This evidence was submitted to demonstrate that the Appellant had grown and matured since the period of offending. The Appellant submitted that all of this evidence was relevant and material to the assessment of the Appellant’s risk of reoffending and that the Tribunal was therefore required to consider it. However, the Appellant submitted that in coming to its conclusion on the risk of future offending the Tribunal did not consider the character evidence and instead based its conclusions on the constancy of the Appellant’s character, whereas that character had changed. Insofar as other matters of significance were raised by the Appellant’s submissions, they are otherwise dealt with in our deliberation below.

The Minister’s submissions

21    The Minister submitted, in broad summary, that the Appellant did not establish that the Tribunal failed to consider the character evidence. The Minister submitted that it is not necessary for the Tribunal to refer to every piece of evidence, only that which supports the findings it has made. The Minister noted that the Tribunal did refer to the evidence of each of the character witnesses in its reasoning and that, the location in the reasoning where this character witness evidence was referred to and the way in which it was referred, did not give rise to an inference that the Tribunal did not consider this evidence before it made its assessment of the risk of the Appellant reoffending. Rather, that the more probable inference is that the Tribunal did not consider, what Counsel termed the “quite general in nature” character evidence, to be important to its reasoning. Further, that the evidence did not address the specific issue that was before the Tribunal, being the risk of the appellant reoffending in particular circumstances – ie – if hard times come again. Moreover, the Tribunal had an independent expert, Mr Simmons, before it who gave a report and was cross-examined specifically on the question of how the Appellant may behave if he faced difficult circumstances in the future – to which Mr Simmons responded that he could not make a prediction of the Appellant’s behaviour. Insofar as other matters of significance were raised by the Minister’s submissions, they are otherwise dealt with in our deliberation.

22    The Minister’s written submissions summarised the evidence given by each of the character witnesses and addressed how the Tribunal dealt with their evidence. It is helpful to set out those excerpts from the Minister’s submissions:

Mr Hipwell

4.    Mr Hipwell, who is a friend of the appellant’s, authored two statements. Both statements were authored in connection with the ‘first’ Tribunal proceedings.

4.1    The first (2-page) statement is dated 28 November 2016 (AB 1155; Exhibit D). Mr Hipwell stated that he had been a friend of the appellant’s since 2009 when they met while studying at Deakin University. Mr Hipwell spoke positively about the appellant, describing him as ‘kind’, ‘compassionate’, ‘good’, ‘respectable’, ‘progressive’, ‘fair-minded’, and ‘patient’. Mr Hipwell said that ‘violence is not within [the Appellant’s] nature, he is a pacifist’. Mr Hipwell referred specifically to the appellant working as a volunteer during the Black Saturday bushfire.

4.2    The second (short) statement is dated 13 December 2016 (AB 1157; Exhibit E). In that statement, Mr Hipwell simply states that he is aware of the appellant’s criminal convictions, and says said that he ‘stand by my previous character reference and believe that [the Appellant] is of good character’.

5.    Mr Hipwell gave limited oral evidence (AB 1265-1269). However, in cross-examination, Mr Hipwell agreed that he had not known at the time of giving his statements in 2016 about the appellant’s convictions of ‘threat to inflict serious injury’ and ‘assault with weapon’. Without explanation, he said that those convictions did not change his opinion. No explanation for that evidence was sought in re-examination (AB 1268-1269).

6.    The Tribunal referred to Mr Hipwell’s evidence specifically in its statement of reasons. First, the Tribunal referred to Mr Hipwell’s evidence in its long table at paragraph [9] under the heading ‘Background’. The relevant table entry (extracted) states as follows:

7.    Then, at paragraph [73], the Tribunal stated:

[The Appellant] has friends in Australia and they have stood by him having full knowledge of his history of convictions. AH has been a friend of [The Appellant] since they met at Deakin University towards the end of the second semester in 2009. He knows [The Appellant] as one of the kindest and compassionate people that he knows and as a good and respectable person who only wants to look after fellow human beings. [The Appellant] is not judgmental and is very progressive and a fair-minded person* …

* In footnote 93, the Tribunal referred to Mr Hipwell’s second statement dated 13 December 2016 (Exhibit E).

Mr Naseem

8.    Mr Naseem, who is a friend of the appellant’s family, authored a statement dated 14 March 2018 (AB 1164-1166, Exhibit I). He was also cross-examined (1278-1283). Mr Naseem spoke in some detail of his interactions with the appellant in Australia.

9.    The Tribunal summarised that evidence in its table at paragraph [9]. The relevant table entries (extracted) state as follows:

10.    As to the appellant’s “character”, Mr Naseem said that he was aware of the appellant’s convictions, and then relevantly said

[25] I believe [the Appellant] has always had the right intentions and was always on the right track however, there was a period in his life where he was side-tracked and lost his focus. I believe this period of offending is confined to the adversity and difficult circumstances he was faced with.

[26] Knowing [the appellant] his whole life, I believe the offending was out of character. I know that he must have been going through hell and under extreme hardship if he was acting that way.

(Emphasis added)

Mr Orre

11.    Mr Orre, who was the accommodation manager for student housing that the appellant stayed at, authored a short undated statement but which was authored in 2016 in connection with the ‘first’ Tribunal proceeding (AB 1167-1168, Exhibit J, AB 1283).

12.    As to the appellant’s ‘character’, Mr Orre simply said:

[The Appellant] has matured and ‘grown up’ over the years since we first met …

Official records will show an involvement with the ‘Law’ but it is my view that the incident is now well behind [the Appellant] and I believe [the Appellant] would be a good and responsible citizen, husband and father as any other Australian male. I can offer no reason as to why the criminal incident happened, but the consequence had a profound effect for the better on [the Appellant] and was of considerable embarrassment to his Father/Family. It is my view that this behaviour is not what [the Appellant] normally engages in and is out of character. I believe that [the Appellant] is not a potential re offender in relation to matters of a criminal nature.

(Emphasis added)

13.    The Tribunal specifically referred to Mr Orre’s views of the appellant’s character, when it said that his views were consistent with those expressed by Mr Hipwell ([73]).

Mr Kingsbury

14.     Mr Kingsbury, who is a friend of the appellant, also authored two short statements in 2016 in connection with the ‘first’ Tribunal proceeding (AB 1170-1171, Exhibit K, AB 1283). As to the appellant’s ‘character’, Mr Kingsbury said that the appellant was ‘kind’, ‘affable’ and ‘thoughtful’. Mr Kingsbury said that he trusted the appellant ‘implicitly’, and was ‘prepared to act as a character reference on his behalf’. Mr Kingsbury said that he had ‘read and understood [the appellant’s] criminal history’, and that he ‘stand[s] by’ his character assessment.

15.    The Tribunal specifically referred to Mr Kingsbury’s views of the appellant’s character, when it said that his views were consistent with those expressed by Mr Hipwell ([73]).

Deliberation

23    Having regard to the submissions of the parties, the Court has concluded that the Appellant has established that the Tribunal failed to have regard to the evidence of the character witnesses when addressing the risk that the Appellant would engage in further criminal conduct if he were to remain in Australia. The Court is satisfied that that is the most probable inference which may be drawn from the relevant circumstances.

24    We accept the Appellant’s submission that the Tribunal’s conclusion regarding the risk of him reoffending was a conditional conclusion. As detailed above at [7]-[8], the Tribunal reasoned (at [40]-[41]) that the risk of the Appellant reoffending was conditional upon the Appellant falling again upon hard times similar to those that he had experienced in 2010-2013: the period during which the relevant offences were committed. We are satisfied that the Tribunal proceeded on an unstated assumption that, if the Appellant experienced such hard times in the future, he would react in the same or in a similar way as to how he reacted when he experienced hard times in 2010-2013. For the reasons given in paras [9]-[10] above, that reasoning required the Tribunal to consider the likelihood of that circumstance reoccurring.

25    As a matter of logic, that assumption was only valid if the Tribunal found that the Appellant’s character was constant in the sense that it was relevantly unchanged from what it had been in 2010-2013. The Tribunal’s findings as to the character of the Appellant were therefore material to the conditional conclusion at which it arrived with respect to the risk of reoffending.

26    The Court further accepts that the Tribunal stated in its reasons that it had considered “all of the evidence” before it in relation to the issue of the Appellant’s potential for reoffending. However, critical to our conclusion is how the Tribunal subsequently addressed – or rather failed to address – the substance and weight of the evidence of the character witnesses in the body of its reasons. For the reasons that follow we find that the Tribunal failed to consider relevant evidence to the effect that the Appellant had grown and matured such that he would not behave in the same way in any future difficult circumstances.

27    We therefore turn to the evidence given by the character witnesses.

Mr Orre

28    Mr Orre was not called to give oral evidence before the Tribunal. He did however provide a letter (Exhibit J) dated 14 November 2016 and a follow up email dated 12 December 2016. With regard to the “criminal incident”, Mr Orre said that:

the consequence had a profound effect for the better on [the Appellant] and was of considerable embarrassment to his Father/Family. It is my view that this behaviour is not what [the Appellant] normally engages in and is out of character. I believe that [the Appellant] is not a potential re offender in relation to matters of a criminal nature.

29    In his letter, Mr Orre also stated that “the appellant has matured and ‘grown up’ over the years.”

30    In its written reasons, the Tribunal’s only mention of the evidence of Mr Orre is at [73], where it states:

[Mr Hipwell’s] views are consistent with those of his other friends, whom I will call [Mr Orre] and [Mr Kingsbury], who also gave statements. They will all miss [the Appellant’s] fine qualities if he is not permitted to remain in Australia.

31    Critically, what appears at [73] is expressed exclusively in the context of the Tribunal’s assessment as to what, if any impact the removal of the Appellant from Australia might have on his friends and family members: as was relevant pursuant to para 12.2(1) of Ministerial Direction No 65 (Direction 65). The relevant passage appears under the heading “Impact on family members”. While para 12.2(1) of Direction 65 itself only refers to the impact of removal on immediate family members, the Tribunal’s placement of [73] under that heading and immediately following the Tribunal’s consideration of the likely impact of the Appellant’s removal on his partner nonetheless leads us to conclude that its focus in that paragraph was on the impact of the Appellant’s removal on others (his family and friends), rather than on any risk that he might reoffend. In coming to this conclusion we reject the Minister’s submission that Mr Orre did not have a complete understanding of the Appellant’s criminal history and that his evidence didn’t quite engage with the Tribunal’s concern about the likelihood of recidivism. The substance of Mr Orre’s evidence was that the Appellant, ashamed of his former conduct, had grown and matured such that he was no longer the same person as the person who had behaved as he had in the past. The evidence was not confined to the proposition that the Appellant’s prior offending was out of character for the man he knew.

32    There is no reference by the Tribunal to Mr Orre’s evidence in its evaluation of the risk of the Appellant reoffending.

Mr Naseem

33    Mr Naseem appeared as a witness in the review and gave evidence before the Tribunal in the form of a statement tendered as Exhibit I.

34    Mr Naseem’s evidence was that he was “fully aware” of the Appellant’s offending. He stated that the Appellant “always had the right intentions and was always on the right track however, there was a period in his life where he was side-tracked and lost his focus. I believe this period of offending is confined to the adversity and difficult circumstances he was faced with”. Mr Naseem described the Appellant’s offending as out of character, noting that he had known the Appellant “his whole life”. He stated that “[s]ince 2013-2016, [the Appellant] has been a model citizen and completely turned his life around”.

35    Mr Naseem stated that when he had caught up with the Appellant in 2013 he had “completely changed from when I last saw him”:

I was in contact with [the Appellant] at least every fortnight. During these times, I could see that he was a changed man. He had matured through his circumstances and I could see that he was trying to leave his past behind and change his life.

Mr Naseem was cross-examined. It was not put to him that the Tribunal should not accept that evidence. In cross-examination Mr Naseem did accept that the Appellant appeared not to have been wholly remorseful when he visited him in 2011. However he maintained, consistently with his statement, that the Appellant had been transformed after meeting with his father in 2013:

So it’s your evidence that when you saw him in the remand centre in 2011 he wasn’t very remorseful?—He was remorseful but not as remorseful. Like when I met him in 2013 with his father he was crying. He was crying with tears in his eyes and to be very honest there was nothing after that. In 2013 – well, I felt that, look, he is changing or has changed so I invited him to my place as well and after that I kept up contact with him. He – soon after that he found a job in the city and I was meeting him quite often there and I could tell he was a changed person. He was a changed man.

36    Mr Naseem was not challenged on that evidence. The unchallenged evidence of Mr Naseem, an older family friend who had known the Appellant for all of his lifetime and who at the time of the Appellant’s offending had been highly critical of the Appellant’s then conduct, was potentially compelling.

37    Beyond the references in the tabular chronology included at [22] above, there is no reference at all by the Tribunal to Mr Naseem’s evidence in its reasons. The references in the tabular chronology to Mr Naseem exclusively concern his part in historical events. Neither touches on the evidence Mr Naseem gave as to the asserted change in the Appellant’s character in the period since his offending.

Mr Kingsbury

38    By contrast, Mr Kingsbury only provided an ordinary character statement. Mr Kingsbury described the Appellant as being a close and trusted personal friend who was a well-liked and “integral part of the community” at the Melbourne Sports and Aquatic Centre. His statement was tendered before the Tribunal as Exhibit K.

39    As with Mr Orre, the Tribunal referred to the evidence of Mr Kingsbury only at [73] of its reasoning as detailed above at [30].

40    We reject the Minister’s submission that the Tribunal was entitled to treat Mr Kingsbury’s evidence as being of no consequence because “on its face” it was “not apparent” from that statement that he “even had an appreciation for the offending”. The Court notes that there is a further letter from Mr Kingsbury also tendered as part of Exhibit K stating that:

This letter is to inform you that I have read and understood [the Appellant’s] criminal history, and that I stand by my previous assessment of [the Appellant’s] good character, and my previous statement to that effect.

41    That acknowledged, understood in isolation from the evidence of Mr Orre and Mr Naseem, the very general character evidence given by Mr Kingsbury is of little force on the risk of the Appellant reoffending. However, Mr Kingsbury’s evidence did not stand in isolation. It was consistent with the evidence of Mr Orre and Mr Naseem, albeit not going so far. Understood in that context, the Tribunal’s limited reference to his evidence reinforces the case that it failed to have regard to the character evidence led on the Appellant’s behalf in assessing the risk that the Appellant would reoffend.

Mr Hipwell

42    Mr Hipwell was called to give oral evidence before the Tribunal. Two letters from Mr Hipwell were tendered, as “Exhibit E” and “Exhibit F”. Those letters identify many positive qualities of the Appellant. As to the issue of the possibility of the Appellant reoffending, Mr Hipwell relevantly stated:

I believe [the Appellant’s] offending occurred in [a] period where he was in difficult and desperate circumstances.

During the period after his last offence in 2013, I witnessed [the Appellant’s] good character and behaviour. From 2013 onwards he showed commitment to his job, his girlfriend and friends. I believe the offending [is] confined to a period of time where [the Appellant] was acting out of character due to the circumstances he was in. While I do not condone his behaviour, I do understand the context in which it occurred which helps me make sense of why [the Appellant] acted in the way that he did.

43    Mr Hipwell acknowledged during cross-examination before the Tribunal that he was not aware of some of the offences at the time of preparing the letters, but after they were put to him he said “I wouldn’t change my opinion”.

44    Again, his evidence was only referred to at [73] of the Tribunal’s reasons in the limited way identified at [30] above.

45    Mr Hipwell’s evidence does not go as far as the evidence of Mr Orre and Mr Naseem. However, understood in the context of that evidence, the absence of any relevant reference to Mr Hipwell’s evidence reinforces the case advanced by the Appellant as particularised in the character ground: that the Tribunal entirely failed to give attention to the character evidence led on the Appellant’s behalf before it in determining the risk of the Appellant reoffending.

46    The evidence of each of the character witnesses was directly relevant to a core issue that the Tribunal was charged with deciding, as required by para 11.1.2 of Direction 65: namely whether there was a risk that the Appellant would engage in further criminal conduct were he permitted to remain in Australia, and were he again to fall on hard times.

47    The evidence of the character witnesses – and in particular the evidence of Mr Orre and Mr Naseem – potentially provided important insights into the Appellant’s enduring character as at the time of the hearing. It was directly relevant to the issue of whether the Appellant was still the same person that he had been at the time of his offending, or had changed for the better.

48    The Court is satisfied, that the character evidence was directly relevant to the critical question of whether the Appellant had, in the words of the Minister’s Counsel, undergone a period of “true character growth”.

49    In coming to this conclusion the Court rejects the Minister’s submission that the calling of Mr Simmons as an expert witness made the Tribunal’s failure to refer to the lay character evidence, insofar as it went to the Appellant’s growth and maturation, understandable and explicable. Nothing that the Tribunal stated in its reasons supports that assertion. Insofar as the Tribunal referred to Mr Simmons’ evidence (see at [7] above), it did so only with respect to considering the choices that the Appellant had earlier made which had led him to suffer homelessness. We reject the proposition that because Mr Simmons (who had conducted only one telephone interview with the Appellant) refrained from making a prediction as to the Appellant’s behaviour in the future, this Court would be entitled to hold that the Tribunal had implicitly rejected the evidence of the lay witnesses called on the Appellant’s behalf who had asserted knowledge of his changed character.

50    We have indicated that we accept the submission made for the Appellant that the Tribunal’s conclusion, that the risk of the Appellant reoffending was not small, was a conditional conclusion. We have noted that the Tribunal reasoned (at [40]-[41]) that the risk of the appellant reoffending was conditional upon the Appellant falling again upon the hard times he had experienced in 2010-2013. We have concluded that an unstated assumption made by the Tribunal was that, if the appellant experienced hard times in the future, he would react in the same or similar way as he had reacted when he experienced hard times in 2010-2013 when the relevant offences were committed. We reiterate that as a matter of logic, that assumption is only valid if the Tribunal found that the appellant’s character was constant in the sense that it was relevantly unchanged from what it had been in 2010-2013. A finding as to the character of the appellant was therefore material to the conditional conclusion arrived at by the Tribunal.

51    The only reference to the relevant character evidence in the reasons of the Tribunal was in a context irrelevant to the Tribunal’s analysis of the risk of the Appellant reoffending in the future. The Tribunal made no express finding that the character evidence should be rejected, nor did it give any indication in its reasons that that evidence was considered material to its analysis of the risk of the Appellant reoffending: either at all, or if and when the Appellant fell upon hard times in the future.

52    The Tribunal was not required to mention each item of evidence before it in reaching its conclusion: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ); Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [48]-[49] (Besanko, Barker and Bromwich JJ). However, the Tribunal was obliged to set out the reasons for its decision: s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Section 43(2B) of that Act required the Tribunal to set out its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The effect of s 43(2B) (like s 430(1) of the Migration Act considered in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf)), is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by the Tribunal to be material: Yusuf at [69] (McHugh, Gummow and Hayne JJ); Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (HSKJ) at [44] (Greenwood, McKerracher and Burley JJ); Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(d)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); and FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 (FCFY) at [90] (Thawley J).

53    As discussed in HSKJ at [44] and FCFY at [91], the inference referred to in Yusuf is not mandatory. It may be displaced if contrary indications are available.

54    However, in the present instance there are no contrary indications to suggest that the Tribunal considered the Appellant’s character, and in particular any change thereto effected between 2013 and 2018, to be material to its conclusion as to the risk of the Appellant reoffending in the future. We would therefore infer that the Tribunal did not recognise that the character question was material to its conditional conclusion, and did not take into account the character evidence in arriving at that conclusion. That failure reveals jurisdictional error: a failure by the Tribunal to take into account a relevant consideration and thereby a failure to carry out the statutory task conferred upon it: Yusuf at [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ).

55    For the reasons we have set out above, the Court would uphold the Appellant’s appeal on the character ground.

56    The Minister did not submit that if the character ground was established that the appeal should be dismissed in any event for want of materiality. However, out of an abundance of caution we indicate that we would not have entertained such a submission had it been advanced. As the primary judge noted at [13] (subject to the particular procedural circumstances as related to the original ground of appeal which are not relevant in the present circumstances):

the submissions of the applicant have a forceful simplicity: relevant and important evidence was overlooked and not taken into account by the Tribunal. Were it so simple, there would be a tolerably clear case of a failure to take into account a relevant consideration. There was broad agreement as to that proposition and it is unnecessary to refer to the cases in that regard to which both sides referred.

57    We are satisfied that had the Tribunal had regard to the evidence discussed above to the effect that the Appellant’s character had fundamentally altered for the better, it could not be concluded that there was no realistic prospect of it having reached a different conclusion with respect to his review.

Original Ground of Appeal

58    We now turn to consider the original ground of appeal, as specified in particulars (i) and (ii).

59    In determining this ground of appeal it is necessary to understand the objectively discernible purpose for which the letter of 5 December 2016 from the Appellant’s General Practitioner, Dr Salter, was tendered before the Tribunal. We therefore set out the background to the tender of Dr Salter’s letter here.

60    At the hearing before the Tribunal, the Tribunal informed the parties that it would only have regard to evidence if it was specifically adduced or tendered in the review. On that basis, a discussion took place before the Tribunal regarding which of the materials that had been adduced by the Appellant in the former proceeding before the AAT were intended to be tendered on his behalf as exhibits in the review. Those materials potentially included the letter that had been written by Dr Salter who had given evidence and been cross-examined in the former proceeding.

61    Counsel for the Minister sought to clarify whether Dr Salter’s letter was intended to be separately tendered on behalf of the Appellant in the review. The Appellant’s Counsel indicated that there was nothing from Dr Salter in the attachments to the Statement of Facts, Issues and Contentions that had been filed on the Appellant’s behalf. The Appellant’s Counsel advised the Tribunal that he would be tendering an expert report of a psychologist, Mr Simmons, and calling him as a witness. Mr Simmons’ expert report reveals that as well as interviewing the Appellant he had “read” Dr Salter’s letter. Clarifying the position as to which materials were intended to “go in” as a separate tender, the Appellant advised: “they don’t include Dr Salter”. The Appellant did not call Dr Salter to give evidence.

62    That is sufficient by way of background to set the scene for the events that later transpired in the Tribunal which are at the crux of this ground of appeal.

63    Mr Simmons was called as a witness by the Appellant. His report was tendered as “Exhibit G” without objection. The cover sheet of that report referred to Dr Salter’s letter, but as parties later confirmed, the letter was not in fact annexed to the report.

64    Mr Simmons was cross-examined by Counsel for the Minister. Early in his cross-examination, Mr Simmons was asked about the materials upon which he had relied in preparing his report and confirmed that he assumed the correctness of the documents that he read in preparing his report.

65    Later in his cross-examination Mr Simmons gave the following evidence:

coming back to that fourth paragraph under the heading ‘Opinion’, we talked about the sentence: Many of his offences were simply to get by. Then you say: There was no evidence of antisocial personality traits? - Yes.

What do you define as an anti-social personality trait? – Anti-social personality traits would be having a string of relationships of a casual nature, cheating on friends, regular criminal activity beginning in your teens that would be varied in nature and would include a range of offending behaviour. Behaviour – troubled behaviour at school, fighting, truancy, those sorts of behaviours.

But there’s been no basis for you to express an opinion that if the applicant faced difficult circumstances in the future, including financial circumstances that he wouldn’t act in a similar way to the way he’s acted in the past? – I cannot make a prediction about his behaviour in the future in any particular given circumstance.

(Emphasis added).

66    Mr Simmons’ reluctance to venture any prediction as to how the Appellant might behave in the future in any “particular given circumstance” plainly was not to the Appellant’s advantage. His cross-examination concluded shortly after that had been established.

67    In re-examination, Mr Simmons confirmed that Dr Salter’s letter of 5 December 2016 was one of the documents that he relied upon in forming his view and the letter was then tendered as “Exhibit H”. The Minister did not object to the tender of that letter and did not seek to clarify the purpose for which it had been tendered. No specific mention of the letter was made in the final submissions of the parties. In particular, beyond the broad statement that “you have heard all the people who support [the Appellant’s] good character”, there was no indication given by the Appellant’s Counsel that the Appellant sought to rely upon Dr Salter’s letter as direct evidence concerning the Appellant’s character.

68    The letter described Dr Salter as having treated the Appellant since 11 June 2014. The letter relevantly stated:

I know that in the past, when he was a student, that he was charged with a number of serious offences. It was at a time in his life when he was destitute, homeless and was in a state of chronic hunger which is one of the most basic human drives and can deeply affect judgement.

He openly admits to his errors of judgment at that time and memories of that period fill him with deep embarrassment and shame, not only to himself but to his family back in Pakistan, who are very respected citizens where they live.

[The Appellant] has grown and matured since that dark time in his life. When you meet him and get to know him as I have, you see an individual who is very caring and warm and someone who would rather help others sometimes to the detriment of his own health and wellbeing. He is honest to a fault, he is obsessive in everything that he does and wants to give back to his adopted home, Australia, where he has been living for over half his life.

I am very confident that [the Appellant] does not represent any threat to our way of life nor any risk of reoffending. On that point, I would stake my reputation. He has spoken often of his desire to offer himself as a volunteer for emergency services, which is more than we can say of a lot of Australian citizens.

(Emphasis added)

69    It is uncontentious that Dr Salter’s letter was capable of being relevant to the Appellant’s risk of reoffending. Dr Salter’s evidence was that the Appellant did not represent “any risk of reoffending”. Indeed, as to that issue Dr Salter unambiguously stated: “[o]n that point, I would stake my reputation”.

70    The Tribunal’s reasons did not refer to either Dr Salter’s evidence, or Exhibit H. It may be that this was because, as the Appellant submitted, the Tribunal failed to appreciate the nature and purpose of the tender of Dr Salter’s letter as evidence going to the likelihood or not of the appellant reoffending and therefore evidence material to its assessment. Alternatively, as the Minister contended, the absence of any reference to Dr Salter’s letter may be due to the fact that the Tribunal considered it not to be material to its findings due to the limited nature of its tender.

71    We have already referred to authority in relation to the obligation of the Tribunal to provide reasons at [52]-[53], and as is the case for the character ground, here too we would infer, with reference to Yusuf, that where a Tribunal has made no reference to a matter in its reasons for decision, it may well be because the Tribunal considered the matter not to be material. In our view, that is what happened here.

72    At the hearing before the Tribunal, the following exchange took place:

DEPUTY PRESIDENT: Mr Simmons is coming as well, isn’t he?

MR BURNSIDE: Yes, you’re quite right.

DEPUTY PRESIDENT: Five to 10?

MR BURNSIDE: It should start under tab 5 and it goes through to tab 14 or it should do.

DEPUTY PRESDENT: I think I’ve only got through to 10, unless something else has been lodged.

73    It might be inferred from that exchange that at least some annexures to Mr Simmons’ report were included in its tender and received by the Tribunal. On the assumption that Dr Salter’s letter was already before the Tribunal for the purpose of explaining Mr Simmons’ expert evidence, the Appellant’s case that – the circumstances attending the later tender of Exhibit H might not justify that evidence being given no significance – was potentially stronger.

74    Having regard to that uncertainty, the Court gave the parties until the end of the first week of January 2020 to provide a joint note addressing that question. On 15 January 2020, the parties’ solicitors provided the Court with a joint note confirming that they were in agreement that, while Mr Simmons’ report mentions that he had read Dr Salter’s letter, it was not annexed to Mr Simmons’ report as tendered before the Tribunal.

75    Dr Salter’s letter could have been material, it could have contributed to a proper consideration of the Appellant’s character and his risk of reoffending. However, the better view is that the Tribunal was entitled to regard it as not tendered for that purpose, and only tendered for the limited purpose of providing the Tribunal with a better understanding of Mr Simmons’ expert evidence. As evidence apparently relied upon for that more limited purpose, the Tribunal was entitled to regard it as not material. The absence of any reference to Dr Salter’s letter in the Tribunal’s reasons is therefore explicable.

76    Once it is recognised, as is now accepted by the parties, that Dr Salter’s letter of 5 December 2016 was not before the Tribunal until it was tendered in the re-examination of Mr Simmons, the challenge made by the Appellant to the reasoning of the primary judge falls away. On the facts as now accepted, there is no plausible basis for contending that the Tribunal should have appreciated that Dr Salter’s letter was tendered for the purpose of the appellant relying upon it directly as character evidence relevant to the likelihood of the appellant further offending rather than merely as “support and background for Mr Simmons’ view” as the primary judge held at [22].

77    Having regard to the specific forensic circumstances then applying, we reject the Appellant’s submission that it should have been clear to the Tribunal that Dr Salter’s evidence was being directly relied upon as character evidence addressing the likelihood of further offending.

78    We therefore identify no error in the conclusion reached by the primary judge that, having regard to the conduct of the hearing before the Tribunal, the Tribunal was entitled to proceed on the basis that the letter of Dr Salter was tendered and put forward on the Appellant’s behalf only as support and background for Mr Simmons’ views.

79    As to particular (ii), it was not an argument put before the primary judge and there is no basis for saying that the primary judge erred. Nor, in any event, are we persuaded that, given the manner in which Dr Salter’s letter was tendered, the Tribunal can be criticised for not informing the Appellant that its use would be limited to the purpose apparent from the nature of the tender. Further, and in any event, in the circumstances, any such failure by the Tribunal would not constitute jurisdictional error.

80    We reject the Appellant’s original ground of appeal insofar as it is premised on particulars (i) and (ii).

Disposition and Orders

81    The Court upholds the appeal on the character ground. The orders of the Court at first instance (other than as to costs) should therefore be set aside and in lieu thereof an order made that the matter be remitted to the Tribunal for determination according to law. The parties should consult as to what, if any, orders should be made in relation to the costs of the appeal and the order for costs made by the primary judge. In the absence of agreement, a short submission (of no more than 2 pages) should be filed and served within 10 days hereof by each of the parties. Any outstanding issues will be addressed by the Court on the papers.

Associate:

Dated:    2 March 2020