FEDERAL COURT OF AUSTRALIA

Leone v Minister for Home Affairs [2020] FCAFC 117

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.

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 born in Calabria in 1960. He arrived in Australia at the age of 12. Since then he has continuously lived in this country but does not hold Australian citizenship. In 2018 his Class BF Subclass C Transitional (Permanent) visa (the “visa”) was cancelled pursuant to s. 501(3A)(b) of the Migration Act 1958 (Cth.) (the “Act”). This occurred as a result of the appellant’s conviction in 2011 for three counts of trafficking heroin, cocaine and amphetamines in commercial quantities. For this he was sentenced to 6 years and 3 months imprisonment. In 2018 a delegate of the first respondent (the “Minister”) decided not to revoke the cancellation of the appellant’s visa pursuant to s. 501CA(4) of the Act. This decision was then affirmed by the Administrative Appeals Tribunal (the “Tribunal”). The appellant sought judicial review of that decision in this Court. On 4 October 2019 that application was dismissed by the learned primary judge. The appellant now appeals that decision.

Applicable Legislation

2    The appellant’s visa was cancelled automatically because of his criminal convictions. Section 501CA authorises the Minister (and here the Tribunal) to revoke that cancellation decision if there is “another reason” to do so. It relevantly provides as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

  (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

3    In this case “Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction 65”) was applied by the Tribunal for the purposes of determining whether there was “another reason” for revocation of the cancellation of the appellant’s visa. The Tribunal was obliged to apply that Direction because of s. 499 of the Act. The learned primary judge very helpfully extracted the relevant parts of Direction 65 in his Honour’s reasons for judgment at [18]-[26] as follows:

[18] Paragraph 6.3 of Direction 65 provides as follows:

6.3 Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

…

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

[19]    Paragraph 7(1)(b) of Direction 65 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

[20]    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen’s visa, are articulated in Part C). Paragraph 8(3) of Direction 65 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

[21]    Part C of Direction 65 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into “primary considerations” and “other considerations”.

[22]    Paragraph 13(2) of Direction 65 provides that the following considerations are “primary considerations”:

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

  (b)    the best interests of minor children in Australia; and

  (c)    expectations of the Australian community.

[23]    Paragraph 13.1 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(a), provides as follows:

13.1 Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

 (2)    Decision-makers should also give consideration to:

(a)    The nature and seriousness of the non-citizen’s conduct to date; and

(b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

…

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

[24]    Paragraph 13.2 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(b), provides as follows:

13.2 Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

(a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)    Whether there are other persons who already fulfil a parental role in relation to the child;

(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

[25]    Paragraph 13.3 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(c), provides as follows:

13.3 Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

[26]    Paragraph 14(1) of Direction 65 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker where relevant. These considerations include, but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

4    We very gratefully adopt the learned primary judge’s summary of the relevant parts of Direction 65.

Background Facts

5    The learned primary judge at [12] adopted the following summary of the applicable background facts from the reasons of the Tribunal:

[7]    The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls.

[8]    In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant.

[9]    In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a [daughter together].

[10]    In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related.

[11]    In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000.

[12]    On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.

6    Once again, we gratefully adopt this summary of the facts. We also note, as did the learned primary judge, that the appellant was given two warnings that his criminal offending might lead to the cancellation of his visa. On the second occasion, which occurred before his conviction for drug trafficking in 2011, the appellant signed an acknowledgement that he was aware that the Minister’s department might consider the cancellation of his visa if further relevant information were to come to its attention.

7    The scale of the appellant’s moral turpitude should not be underestimated. The commercial trafficking of serious drugs claims many innocent victims. The appellant profited from their suffering. In sentencing the appellant in 2011, his Honour Judge Chettle in the County Court of Victoria noted that the appellant had “no remorse” for his conduct. His Honour also observed that the appellant had told “brazen lies … on oath” and that he had not learnt from prior court appearances. His Honour found that the appellant’s prospects for rehabilitation were “clearly not good” and concluded with the following observation:

Principles of general deterrence, specific deterrence, denunciation and protection of the community dictate that nothing other than a substantial term of imprisonment is appropriate in [y]our case. You were playing high stakes and the penalty for detection and conviction is high.

The Tribunal’s Decision

8    The learned primary judge summarised the findings made by the Tribunal at [27]-[34] as follows:

[27]    As noted above, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr Leone’s visa.

[28]    As both parties agreed that Mr Leone did not pass the character test for the purposes of s 501(6) of the Act (by virtue of his having a “substantial criminal record”), the sole issue before the Tribunal was whether there was “another reason” to revoke the visa cancellation, with reference to the primary and other considerations identified in Direction 65.

[29]    In respect of the first primary consideration under Direction 65, protection of the Australian community from criminal or other serious conduct, the Tribunal concluded (on the issue of the nature and seriousness of the conduct to date) that:

[37]    Having regard to the factors set out at paragraph 13.1.1 of Part C, I am satisfied that the Applicant’s conduct in trafficking drugs of dependence was, of its nature, a substantial threat to the welfare of individuals with whom he dealt and to the Australian community generally. This is particularly so for the offences for which he was convicted in 2011 which involved the trafficking of multiple drugs on a commercial scale. The sentences handed down by the court attest to the seriousness of the offences.

[30]    In respect of the risk to the Australian community should the non-citizen commit further offences, the Tribunal concluded, on the issue of the nature of the harm that would be caused:

[41]    It is beyond dispute that drug trafficking is a serious social problem. It has a very significant detrimental effect on the Australian community. It directly causes serious harm to individual drug users and indirectly results in social problems for the whole community. Should the Applicant engage in further criminal conduct, and particularly the trafficking of drugs of dependence, he will visit these harmful effects on the Australian community.

[31]    On the issue of the likelihood of re-offending, the Tribunal concluded:

[61]    Taking account of all the evidence, I am satisfied that there is a significant risk that the Applicant will re-offend if the cancellation of his visa is revoked.

[62]    Having regard to this risk and the nature of the harm that would result from the Applicant reoffending I find that the primary consideration of protecting the Australian community weighs strongly in favour of refusing to revoke the cancellation of the Applicant’s visa.

[32]    In respect of the second primary consideration under Direction 65, the best interests of minor children in Australia, the Tribunal concluded in respect of Mr Leone’s [daughter] and his three grandchildren:

[70]    Taking all of these matters into account, I am satisfied that it would be in [the daughter’s] best interests for the Applicant’s visa cancellation to be revoked. While there would be opportunities for ongoing contact with the Applicant if he were deported to Italy and while [the daughter] would have strong support from her family and access to counselling by Ms Kay, I am satisfied that the impact on [the daughter] would be significant at this stage of her life. I accord this factor significant weight.

[71]    As to the Applicant’s three grandchildren, they were all born while the Applicant was in prison and so have no direct involvement with him. They are also young and have the support of their parents. It would no doubt be to the advantage of the grandchildren to have direct contact with their grandfather but I am not satisfied that the interests of the three grandchildren should be accorded significant weight.

[33]    In respect of the third primary consideration under Direction 65, the expectations of the Australian community, the Tribunal concluded:

[80]    Having regard to these matters, I am satisfied that because of the nature and extent of the Applicant’s offending, the Australian community would expect that the cancellation of his visa should not be revoked. I find that this consideration weighs heavily in favour of not revoking the cancellation.

[34]    The Tribunal accepted that the “other considerations” relating to the strength, nature and duration of Mr Leone’s ties to Australia and the impact on family members if the cancellation decision was not revoked, weighed (moderately) in his favour: at [81]-[86]. However, the Tribunal found that the countervailing considerations did not overcome the need for protection of, and expectations of the Australian community. The Tribunal concluded that:

[88]    Weighing each of the factors for and against revoking the cancellation, I am satisfied that the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh any other considerations and favour the exercise of the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa.

9    We again very gratefully adopt the learned primary judge’s summary of the Tribunal’s decision.

The Judgment Below

10    There were three grounds of review of the Tribunal’s decision. The first was that the Tribunal had failed to take into account the following three matters:

(a)    The financial or material impact on the appellant’s daughter;

(b)    The impact of the appellant’s deportation on his elderly mother; and

(c)    The expert psychological evidence of a Ms. Matthews.

11    As to the first matter, the learned primary judge found that the financial or material impact on the appellant’s daughter had been subsumed as a subsidiary matter when the Tribunal considered, in some detail, the emotional impact on the daughter of the appellant’s deportation. The learned primary judge reasoned at [46] as follows:

In relation to [the daughter], the primary evidence and submissions advanced before the Tribunal on the issue of the best interests of children concerned the emotional impact on Mr Leone’s daughter, [the daughter], of Mr Leone’s deportation. The Tribunal accepted the evidence of a psychologist, Angela Kay, that Mr Leone’s deportation to Italy would have a dramatic adverse effect on [the daughter]. In contrast, the evidence and submissions advanced before the Tribunal concerning the financial impact on [the daughter] of Mr Leone’s deportation, summarised above, was at a high level of generality. The Tribunal was satisfied that it would be in [the daughter’s] best interests for Mr Leone’s visa cancellation to be revoked and accorded that factor significant weight. While the reasoning of the Tribunal shows a considerable focus on the likely emotional impact on [the daughter] if her father were deported, the Tribunal’s overall findings are stated broadly. Given the finding that it would be in [the daughter’s] best interests for Mr Leone’s visa cancellation to be revoked, a further finding specifically directed at the submission that [the daughter] would be materially or financially prejudiced by her father’s deportation was unnecessary. The Tribunal’s finding subsumed all matters that had been identified as supporting such a finding.

12    In any event, his Honour also found that if this issue had been overlooked, it was not a material error. The learned primary judge reasoned at [47] as follows:

For similar reasons, I do not accept that any failure of the Tribunal to consider the financial consequences to [the daughter] of her father’s deportation was material to the Tribunal’s decision in the sense of depriving Mr Leone of the possibility of a successful outcome. The primary evidence adduced before the Tribunal concerned [the daughter’s] emotional well-being. The Tribunal found that it would be in [the daughter’s] best interests for Mr Leone’s visa cancellation to be revoked and accorded that factor significant weight. In my view, the generalised evidence that, in the future, Mr Leone would be in a position to assist [the daughter] financially could not realistically have affected the Tribunal’s overall assessment of this consideration, in circumstances where the Tribunal had already given the consideration significant weight.

13    As to the second matter, the learned primary judge referred to the following finding made by the Tribunal at [86] of its reasons:

The interests of family are not a primary consideration under the Direction, but I accept that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for the Applicant’s partner, his adult children, his aged mother and other members of his family. I give this consideration some weight.

14    The primary judge decided that the foregoing passage showed that the Tribunal had taken into consideration the impact of deportation on the appellant’s mother. His Honour reasoned at [53] as follows:

In my view, the Minister is correct that there is no jurisdictional error in this aspect of the Tribunal’s decision. The Tribunal plainly had regard to the impact of Mr Leone’s removal on his mother and acknowledged that she was elderly. As stated by the Tribunal, the impact on family members is a secondary consideration. While the Tribunal did not advert specifically to his mother’s illness and incapacity to travel, I do not infer that the Tribunal overlooked those matters. Rather, the Tribunal summarised its principal findings and noted that it gave this consideration some weight. I also consider that this consideration is closely connected with the subject of strength, nature and duration of ties with Australia, which the Tribunal gave some considerable weight to. Conversely, I do not think this consideration needs to be considered under the subject of the extent of impediments if removed.

15    As to the third matter, the learned primary judge set out lengthy passages from the Tribunal’s reasons where the report of Ms. Matthews was considered. This included the following passage at [56] of the Tribunal’s reasons:

I accept the expert opinion of Ms Matthews regarding the statistical likelihood that the risk of reoffending declines with age, especially after 50, and after a lengthy sentence. I give this evidence limited weight as it is not correlated with the particular circumstances of the Applicant. I give less weight to the opinion of Ms Matthews regarding the Applicant’s actual circumstances. Her opinion was based on a single telephone interview and review of a limited number of documents. In giving her evidence, Ms Matthews was argumentative and defensive at times during cross-examination and did not present as an impartial witness.

16    The learned primary judge decided, contrary to the submissions put by the appellant below, the following:

(a)    That the Tribunal had taken into account Ms. Matthews’ evidence about the appellant’s participation in a peer support program;

(b)    That the Tribunal had considered Ms. Matthews’ evidence concerning the effect of a long prison sentence and the appellant’s age on the risk of re-offending;

(c)    That the Tribunal did explain why it found that the statistical evidence concerning age and length of sentence and the risk of re-offending did not sufficiently correlate with the appellant’s particular circumstances; and

(d)    That the Tribunal’s finding that Ms. Matthews was argumentative and defensive in giving her evidence and did not present as an impartial witness did not disclose the presence of jurisdictional error.

17    The second ground was that the Tribunal had breached its procedural fairness obligation when it failed to put the appellant on notice that his drug addiction might be found to have played no part in his past offending. This was rejected by the learned primary judge at [73]-[74] as follows:

[73]    The risk of re-offending was a live issue in the hearing before the Tribunal. In my view, the significance of Mr Leone’s drug taking as a contributing factor to his offending in 2009 was an issue before the delegate and was therefore an issue before the Tribunal. Further, that Mr Leone was aware of this issue is demonstrated by the evidence adduced by him before the Tribunal:

(a)    The significance of Mr Leone’s drug taking was addressed in the Joblin report dated 21 November 2016 which was referred to by the delegate.

  (b)    In his statement dated 20 December 2017, Mr Leone stated (at [19]):

I know another chance is a lot to ask for, but I have really reached out for help in prison, which I never did before. I have done all the gambling and drug and alcohol courses that I could. My sentence has given me the opportunity to reform. I have broken my drug habit and haven’t used. I never reached out before for any kind of help before with my drug problem, because I thought I was in control, but I now realise that wasn’t the case. I have got the help I needed and I have changed.

(c)    Mr Leone elaborated on that evidence in his statement dated 13 August 2018 at [14], [15], [17] and [25].

(d)    In her report dated 15 August 2018, Ms Matthews attributed the cause of Mr Leone’s offending to his drug taking, stating:

(at page 2) As to why he had not heeded a 2006 warning regarding his visa, Mr Leone related his drug use to his crime, “I stayed clean for 5-6 years then slowly got back into cocaine and with that the wrong crowd.”

and

(at page 7) Mr Leone’s reoffending in the writer’s view has its basis primarily in his illicit substance use.

[74]    In my view, it is apparent from that material that Mr Leone was aware that the significance of his drug taking as a contributing factor to his offending was an issue before the Tribunal and sought to address that issue through the abovementioned evidence. Ultimately, the Tribunal was not satisfied that drug taking was a significant factor. That was an adverse finding that was open on the material before the Tribunal. In my view, Mr Leone was not denied procedural fairness on that aspect of the review.

18    The third ground of review was that the Tribunal’s finding that Ms. Matthews’ opinion about the risk of re-offending was not correlated with the particular circumstances of the appellant was irrational. Again this was rejected by the learned primary judge. At [79] his Honour reasoned as follows:

In my view, there is nothing irrational in the Tribunal’s conclusion with respect to the weight to be given to the statistical evidence of re-offending cited by Ms Matthews. Minds may differ on the weight to be given to such evidence. It can be noted that Ms Matthews conceded in her written evidence (at page 7) that, unlike some recidivism statistics, for example those concerning sexual offending, the statistics for drug related re-offending are less clear. The statistics cited by Ms Matthews relate to all types of offending, they are not confined to drug related offending. No error is shown in the Tribunal’s conclusion.

Amended Notice of Appeal

19    At the hearing of this appeal, the appellant sought leave to rely upon an entirely new set of appeal grounds. They were as follows:

1.    The Court erred by not finding that the Tribunal failed to consider a clearly articulated argument and clear evidence relevant to a primary consideration of Ministerial Direction 79 made under s 499 of the Migration Act (Cth) (“the Act”) and in doing so failed to discharge its duty of review pursuant [to] the Act and/or failed to accord procedural fairness.

Particulars

The Appellant raised a clearly articulated claim and provided evidence that revocation of the cancellation decision was in the financial best interests of his minor daughter and the claim/evidence was ignored by the Second Respondent.

2.    The Court erred by not finding that the Tribunal failed to accord procedural fairness by not informing the appellant of an issue in the review, being the role of the Appellant’s past drug use in his offending, and failing to provide the Appellant with an opportunity to provide evidence or submissions with respect to that issue.

3.    The Tribunal fell into jurisdictional error in finding that it was not satisfied on the evidence that the Appellant’s drug taking played a significant part in his offending in 2009, when such a finding was illogical and/or irrational.

20    The Minister did not oppose the grant of leave in relation to the first two grounds as they sufficiently related to some of the grounds of review pursued below. However, he did oppose the grant of leave in relation to the third ground insofar as it raised an argument not put to the learned primary judge below. For the reasons which follow, we would refuse the appellant’s application for leave to rely upon ground three.

Submissions of the Parties

21    The first ground of appeal attacked the Tribunal’s supposed failure to consider the impact of deportation on the financial or material interests of the appellant’s daughter. This was a material error, it was said, because had it been considered it might have led the Tribunal to give even greater weight to the interests of the daughter; indeed so much weight as to become possibly the decisive factor in favour of revocation. The appellant, in that respect, emphasised that his case relied both upon the emotional impact on the daughter as well as upon the financial impact on her.

22    The appellant also relied upon the following evidence in order to demonstrate how the issue of financial dependence had been articulated before the Tribunal:

(a)    A reference in the appellant’s statement of facts and contentions that the appellant wanted “to help support [his family] financially by working”;

(b)    The following reference in a witness statement of the appellant’s partner:

If [the appellant] is able to stay here, he will help support us financially. I find it difficult to make ends meet. It would be so much better for [the children] if they had both [the appellant] and me present in their lives and supporting them financially, practically and emotionally.

(c)    The references in the transcript of the hearing before the Tribunal to the appellant’s partner needing to work nightshifts in a warehouse and to her claim that the appellant would make a “substantial” difference financially if he were to remain in Australia.

23    The second ground of appeal arises in the context of the appellant’s claim that he was now “drug free” due to, amongst other things, his participation in rehabilitation programs. It essentially raised the same contention about procedural fairness which the learned primary judge had dealt with. It was submitted that the delegate had made it clear that the appellant’s drug use had been a “significant” contributing factor to his offending. There is an immediate difficulty with that proposition. With respect, it overstates the delegate’s finding. What the delegate in fact said is as follows:

I accept Mr Joplin’s findings and that [the appellant’s] personal difficulties contributed to his own drug usage and accordingly to his criminal offending.

24    There is no finding that the appellant’s drug use was a “significant” contributing factor; rather the finding was that it was a contributing factor. The delegate went on to state that this finding in no way excused or mitigated the appellant’s offending.

25    Nonetheless, the appellant relied upon the following passage from the decision of the High Court in SZBEL v. Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 C.L.R. 152 at 163 [35]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

(Emphasis added by the appellant.)

26    Here, it was submitted that having regard to the delegate’s finding, the appellant was entitled to have assumed that it was not in issue that his drug taking had contributed to his offending. He was also entitled to have maintained that assumption during the hearing because the Minister made submissions about the appellant’s rehabilitation. On that basis, the appellant had not led additional evidence or made any further submissions about this issue. Yet the Tribunal decided not to give “significant weight” to the appellant’s contentions about his rehabilitation in determining the risk that the appellant might reoffend. It reasoned as follows at [52]-[53]:

I accept the Applicant’s evidence that he has been drug-free during the entire time that he has been incarcerated and that he has engaged in rehabilitation programs for drugs and gambling. I do not give any significant weight to these factors because I am not satisfied on the evidence that the Applicant’s drug-taking and gambling played a significant part in his offending in 2009.

The evidence regarding the extent of the Applicant’s drug-taking prior to 2011 is unclear. He reported to Ms Matthews being drug-free for several years in the 1990’s. Bernard Healy, the clinical psychologist upon whom the Applicant relied in his submissions to the Department in response to the NOICC in 2006, reported that the Applicant had not used illicit drugs in the last 10 years. There are no admissions in the statutory declarations sworn by the Applicant in 2006 that he had a drug addiction or that it was a causative factor in his offending. In any event, the Applicant’s offences in 2009 were related to a lucrative commercial drug selling undertaking. The sentencing judge in 2011 calculated that the Applicant had grossed $364,000 from the sale of drugs in the period from 31 January 2009 to 31 July 2009. This was clearly not a situation of a drug-addicted person engaging in trafficking to support their habit.

27    It was submitted that the Tribunal’s failure to raise the role of the appellant’s drug taking on the issue of assessing his risk to the community was a breach of procedural fairness because the appellant could have led more evidence on this issue; in particular more evidence might have been led from his expert psychologist, Ms. Matthews. In other words, further evidence about the appellant’s rehabilitation might have more clearly demonstrated that a “significant” contributor to his offending behaviour had been eliminated.

28    The third ground was not raised before the judge below in any way. It asserted that the finding that the Tribunal should not give “significant weight” to the appellant’s evidence about his rehabilitation because it was “not satisfied on the evidence that the Applicant’s drug-taking … played a significant part in his offending in 2009” was irrational and illogical. It was contended that leave should be granted to permit the appellant to raise this new ground because it had “merit.” Senior Counsel for the appellant candidly admitted that the point had been conceived by her junior counsel who was new to the case.

29    The appellant referred to the evidence given by Mr. Joplin, a forensic psychologist, and by Ms. Matthews about the issue of rehabilitation. Mr. Joplin had written:

There is no doubt that Mr Leone has had problems with drugs and antisocial behaviour and that has been outlined. Mr Leone was emphatic that the basis for the offences for which he is currently serving a sentence and the offences for which I saw him previously which occurred in 2003 were based on drug use, gambling and an associated antisocial life style. In 2005 I indicated that Mr Leone wanted nothing further to do with that life style, being aware that it had brought him to the attention of the police. I felt that if he were successful in achieving his ambition of remaining free of an antisocial life style, there was the basis for an optimistic problems [sic].

Unfortunately further offences were committed and the basis of that was outlined in His Honour’s sentencing comments from the County Court in December 2011.

I have continually maintained that for an optimistic prognosis and freedom from further attention from the police his previous life style including his history of drug abuse and gambling needed to be addressed. To that end I have noted the report of Mark Halloran of Anglicare, dated the 17th of October 2015, and the report of SPO Bowman from Corrections, dated the 22nd of May 2016. I note that Mr Leone successfully completed the positive life style program, a 24 hour drug and alcohol treatment program, a gambling education and information group program and a peer listener training program. I have noted certificates relating to a licence to perform high risk work, which would obviously widen the scope for his employment on release. He has participated in the OHS process. He has completed Certificate 3 in commercial cookery. He has completed a Change on the Inside program and a Men’s Health Education Program.

30    Ms. Matthews had written:

Mr Leone reported he had received very little rehabilitation during earlier periods in prison. He reported during his time at Loddon completing a welding course for five to six months, attended an anti-bullying program and a peer listening program and has been part of the peer listening program, listening to and mentoring young and first-time prisoners over the course of his sentence. He has undertaken all available drug and alcohol programs and re-instated his fork lift license. The writer notes Mr Leone’s documents include many more qualifications and treatment programs undertaken during his time in custody. He has not used drugs during his time in Loddon or at Christmas Island despite available opportunities and temptations to do so. It was hard at first to say “no,” but it has become “easier and easier to stay clean over time.” About his gambling Mr Leone reports he has completed a six-week program with Inside Out and additionally has undertaken counselling with Mark O’Halloran of St Luke’s.

31    It was said to be irrational for the Tribunal to rely upon the evidence given by the appellant in 2006, as set out at [53] of the Tribunal’s reasons (extracted above at [26]), in the face of this expert evidence.

32    The Minister generally supported the reasons of the learned primary judge. In relation to ground one, the Minister emphasised that in assessing the materiality of a contention the Court needed to consider the cogency and the quality of the evidence led about it. In that respect, the evidence concerning the financial support the appellant might provide if he were to remain in Australia was, it was said, no more than “aspirational.” There was no real evidence led about how, and to what extent, the appellant could provide such support. At most, the evidence comprised mere assertions about potential support. Such evidence could not ground a finding that there was a realistic possibility of a different outcome if the Tribunal had considered the point: Minister for Immigration and Border Protection v. SZMTA (2019) 264 C.L.R. 421 at 445 [45]-[46]. The Minister otherwise supported the finding of the primary judge that consideration of the possibility of financial support had been subsumed within the broader consideration of the emotional effect that deportation of the appellant would have on his daughter.

33    As to the second ground of appeal, the Minister submitted that the issue of the appellant’s drug taking was an obvious issue arising from the material before the Tribunal. If the appellant had wanted to contend that his drug taking had been a substantial cause of his serious offending in 2009, it had been open for him to make that contention and lead evidence about it. The Minister otherwise characterised this complaint, at best, as a failure by the Tribunal to disclose its mental processes and its view of the evidence before reaching its final decision. The Tribunal, it was submitted, was under no obligation to reveal to the appellant matters of this kind: SZBEL at 445 [48]. The Minister further submitted that the appellant’s reliance on the passage in SZBEL set out above at [25] of these reasons was misconceived. The “starting point”, it was said, was not the delegate’s decision and the “issues” that person had identified. That is because this was not a case concerning an application for a protection visa governed by Pt. 7 of the Act; in particular s. 425 of the Act did not apply here. That provision provides as follows:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

  (c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

34    Rather, it was contended, that general principles of procedural fairness are engaged here. In any event, the Minister referred the Court to the delegate’s identification of the “issue” as including the finding made at [34] of the delegate’s reasons, that notwithstanding protestations of being drug free in the past, the appellant had continued to re-offend. The Minister also relied upon the findings made by the Tribunal at [53] of its reasons (set out above at [26]) that the appellant had been trafficking in drugs as a “commercial” operation and that the offences committed in 2009 were “clearly not a situation of a drug-addicted person engaging in trafficking to support their habit.”

35    In relation to ground three, the Minister submitted that the appellant should be bound by the forensic choices made on his behalf below. The Minister referred the Court to the following well known passage from the reasons delivered in Metwally v. University of Wollongong [1985] HCA 28; (1985) 59 A.L.J.R. 481 by Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ. at 483:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had [an] opportunity to do so.

36    The Minister also submitted that ground three lacked merit. The Tribunal’s decision not to give “significant weight” to the claims made about drug rehabilitation because it was “not satisfied on the evidence that the Applicant’s drug-taking … played a significant part in his offending in 2009” was a finding that was open for it to reach on the material before it. It involved a careful analysis of the evidence that was directed at the appellant’s drug taking over the relevant period. It was neither irrational nor illogical. In that respect, it was said that the opinions of Mr. Joplin and Ms. Matthews were prepared many years after the offending had taken place in 2009 and were based on what the appellant had said to each of these psychologists.

Disposition

37    We respectfully agree with the reasons and decision of the learned primary judge concerning ground one. His Honour was correct to characterise the claims made about financial impact as exhibiting a “high level of generality” in contrast to the claims made about the emotional impact of deportation. We also agree with the Minister’s submission that the very small amount of evidence led about this issue rose no higher than assertions of an aspirational nature. No real evidence was led about how the appellant might support his daughter financially. As it happens, prior to his conviction in 2011, his principal source of income would appear to have been from the trafficking of illegal drugs. The Tribunal observed that the appellant had grossed $364,000 from the sale of these drugs from 31 January 2009 to 31 July 2009.

38    The learned primary judge was also well aware of the basal proposition that a Tribunal is not obliged to refer to every piece of evidence and every contention made in its reasons: Minister for Immigration and Border Protection v. Maioha (2018) 267 F.C.R. 643 at 653-654 [41]-[45]. Here, in our view, the claims made about financial support, when considered in the context of the primary contentions made about emotional impact, were of a confined and fleeting nature. They did not merit express consideration in the reasons of the Tribunal.

39    We also respectfully agree with the reasons and conclusion of the learned primary judge that if the Tribunal had erred in failing expressly to advert to the claim of financial support, that error was not material. The finding of the Tribunal was that the best interests of the appellant’s daughter favoured revocation of the cancellation decision. It expressly accorded this factor “significant weight”. We are not satisfied, having regard to the slim amount of material grounding the claim of financial support, that the Tribunal would have given this factor even more significant weight. In particular, we are far from being satisfied that there was a realistic possibility that the Tribunal would have reached a different result. We otherwise also respectfully agree with the submissions made by the Minister concerning the first ground of appeal.

40    As to the second ground of appeal, we again respectfully agree with the reasons and conclusion of the learned primary judge that the issue of the appellant’s previous drug taking, and his claims about rehabilitation, were matters which the appellant can be taken to have known would be considered by the Tribunal at the hearing before it. The evidence referred to by the primary judge at [73] (as set out above at [17]) well-grounded that proposition. The appellant knew that the likelihood of his re-offending was an issue the Tribunal would need to address. Knowing this, the appellant would also have known that the cause or causes for his offending would need to be examined by the Tribunal. In such circumstances, in our view, it was for the appellant to lead evidence, and make necessary contentions, which established that his drug taking had been a “significant” contributor to his criminal offending and that he had now been rehabilitated, thus removing or reducing that cause for re-offending going forward. The Tribunal did not breach its obligations of procedural fairness in not raising these matters expressly with the appellant. We otherwise also respectfully agree with the submissions made by the Minister concerning the second ground of appeal.

41    Finally, in our view, and with very great respect, the appellant should not be granted leave to rely upon the third ground of appeal. It lacks merit. Attacking the “weight” to be given to a factual consideration is merits review, save for the most extreme of cases that would justify a finding of legal unreasonableness. It is a basal principle of administrative law that, generally speaking, it is for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 C.L.R. 24 at 41. In that respect, the Tribunal did not fail to consider the expert reports of Mr. Joplin and Ms. Matthews. The 2016 report of Mr. Joplin, which had not been prepared for the purposes of the Tribunal proceeding, but which was before it, is referred to at [54] in the Tribunal’s reasons. The report of Ms. Matthews, which was prepared for those proceedings, is referred to at [45], [46], [47], [53], [54] and [56] in the Tribunal’s reasons. It was also a matter for the Tribunal to characterise her evidence as “argumentative and defensive at times.” It follows that the appellant, who had been represented by Counsel at trial, should be bound by the forensic decision he made below when he did not raise this contention as a ground of review before the learned primary judge. We otherwise respectfully agree with the Minister’s submissions concerning this ground of appeal.

42    The appeal should be dismissed with costs.

Associate:

Dated:    7 July 2020