Federal Court of Australia

VKTT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 94

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from the judgment reported as VKTT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1437. The primary judge dismissed an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal on 20 March 2020. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of the appellant’s Class TY Subclass 444 Special Category (Temporary) Visa under s 501CA(4) of the Migration Act 1958 (Cth).

2    In substance, the issue on appeal is whether the appellant was denied procedural fairness due to the way in which the Tribunal assessed the expert evidence of a clinical psychologist, Mr Mercurio Cicchini, in the form of a written report and a transcript of oral testimony given to the Tribunal. That evidence had been adduced before a differently constituted Tribunal whose decision affirming the Minister’s decision was set aside in an earlier case in this Court which remitted the matter to the Tribunal: VKTT v Minister for Home Affairs [2019] FCA 1018; 166 ALD 443 per Burley J. The written report and transcript of the oral testimony was then tendered to the second Tribunal whose decision was under review by the primary judge.

Background

3    The appellant is a 41-year-old male citizen of New Zealand who arrived in Australia in 2006 as an adult aged 26 years.

4    On 2 June 2016, the appellant’s visa was mandatorily cancelled under s 501(3A) of the Act. The appellant had been sentenced on 11 February 2016 to multiple terms of imprisonment ranging from 3 months to 12 months for offending including “unlawful use of motor vehicles”, “dangerous operation of a vehicle”, “possessing dangerous drugs”, “assault or obstruct police officer” and other offences. He had been convicted of 46 offences in his country of origin and 16 offences in Australia.

5    It was common ground that the appellant did not, and does not, pass the character test in s 501(7)(c) of the Act because he had been sentenced to, among other sentences, 12 months’ imprisonment.

6    The second Tribunal considered various factors both in the appellant’s favour and against him with regard to whether or not the mandatory cancellation of his visa should be revoked. Having considered all of those factors, the Tribunal ultimately concluded that it would affirm the decision of the delegate, i.e., it decided not to revoke the cancellation of the appellant’s visa.

The procedural fairness issue

7    The appellant’s procedural fairness complaint focuses on the Tribunal’s reasons in assessing a brief report (really, a short letter) by Mr Cicchini and Mr Cicchini’s oral testimony with regard to the risk of the appellant reoffending if the cancellation of his visa was revoked and he remained in Australia. The relevant terms of the report and the testimony are set out in the primary judgment (at [18] and [20]). It is unnecessary to set them out here.

8    In summary, in his report, which is dated 25 October 2017, Mr Cicchini said nothing about the risk of the appellant reoffending. The report identified that the appellant was suffering symptoms of post-traumatic stress disorder related to his history of serious injury from assaults on several occasions and that he had reality-based anxieties about being returned to New Zealand because of an attack he had suffered there. The report concluded as follows:

[The appellant’s] victimisation experiences whilst in custody in Queensland have had a cumulative effect on his anxiety and concern for his safety, but paradoxically, these events have produced a strong desire to rehabilitate himself by distancing himself from antisocial activities and peers, and he plans to undertake relevant education in order to offer positive mentorship to youth in the future.

9    In his examination in chief before the first Tribunal, Mr Cicchini said that he had observed “a maturational process sort of starting to manifest, where [the appellant] is able to analyse and look back upon his life and see the error of his ways … and making a decision to learn from that and to try new things in the future that are more productive and helpful, and to contribute more positively to the community than he had earlier in his life.”

10    He was then asked the following question to which he gave the recorded answer:

And what I’m wondering is, in [the appellant’s] case, how would you see that, in terms of his, to put it another way, likelihood or unlikelihood of offending against laws? – – – Well, I think it’s a sign of maturation, a sign of growth. It’s very positive and encouraging, and it gives hope for the future. In other words, the signs that I saw are excellent, and very promising.

11    In cross-examination, Mr Cicchini was asked what he knew about the appellant’s criminal history. He said that his role “here and my role in seeing [the appellant]” was not to provide a forensic assessment of the appellant’s criminal history and that he presumed that that task had already been undertaken by another specialist. When pressed on his knowledge of the appellant’s criminal history, Mr Cicchini said that it was not included in his report because he did not do any assessment of the appellant’s criminal history.

12    It will be observed that Mr Cicchini said nothing directly about the risk of the appellant reoffending and in particular eschewed any suggestion that he had made any forensic assessment of the appellant’s criminal history.

13    The Minister made it clear at both the first and second Tribunal hearings that his position was that the appellant’s claims and evidence of rehabilitation should not be accepted. In his submissions to the first Tribunal, the Minister noted that the remit of the appellant’s mental health professionals was to treat his mental health issues and that they had not been engaged to, and had not provided, a forensic assessment of his criminal history or an assessment of the risk of him reoffending.

14    After the appellant confirmed at the end of the second Tribunal hearing that he would not be calling Mr Cicchini, his representative said that in his written closing submissions he would address the weight which the Tribunal should place on witnesses who were not called, including Mr Cicchini.

15    The second Tribunal, in its reasoning, clearly regarded the question of the risk of the appellant reoffending as an important question. The Tribunal analysed the evidence relevant to this question at some length. The Tribunal also noted that Mr Cicchini’s report was prepared in October 2017 and was therefore more than two years old by the time of the second hearing and that the Tribunal had not been presented with any contemporary psychological reports.

16    The paragraphs of the Tribunal’s reasons that are most central to the appeal are reproduced at [16] of the primary judgment. In summary, they are as follows:

(1)    The Tribunal, with reference to an article published in the Rutgers Law Review in 1976, stated that it has long been recognised that unstructured and unguided clinical opinions by both psychiatrists and psychologists on the risk of future offending are marked by high rates of false-negative findings.

(2)    The Tribunal reasoned that various instruments of risk prediction have been developed, referred to as actuarial approaches to risk assessment, which have generally been found to be more accurate than unstructured clinical judgments and are designed to promote predictive validity and reliability.

(3)    The Tribunal observed that there are many judgments that recognise the utility of adopting a more structured and actuarial approach, but that nonetheless recognise that even by the adoption of such an approach there can be no guarantee that the risk of assessment will be accurate and reliable. The Tribunal referenced two judgments of the Supreme Court of Western Australia and a judgment of the New Zealand Court of Appeal.

(4)    The Tribunal then said that it had found the testimony and report of Mr Cicchini to be of assistance, but that there was no evidence before the Tribunal that Mr Cicchini’s conclusions as to the risk of the appellant's reoffending were made with the benefit of the utilisation of any actuarial predictive instruments. Instead, his opinions were based on his own judgment which was made more than two years previously, and the Tribunal had not had the benefit of receiving any contemporary evidence from Mr Cicchini. As a result, the weight to be placed on his evidence was less than it otherwise would have been.

(5)    After acknowledging his PTSD, the Tribunal stated that it was satisfied that the appellant had made improvements in his life since he had been in immigration detention, but his past actions did not give the Tribunal confidence that the likelihood of him engaging in further criminal or other serious conduct had been significantly reduced.

(6)    The Tribunal concluded that it was not confident that the appellant was no longer a risk to the Australian community if he was released and that it could not be said with confidence that there was not a likelihood that, in time, the appellant would go back to his criminal habits. Indeed, the Tribunal reasoned, if the past is any predictor of the future, then there was a significant likelihood that the appellant would revert to his past habits and commence reoffending.

(7)    Ultimately, the Tribunal reasoned that the risk that the appellant poses to the Australian community far outweighs any family considerations.

The appellant’s complaint

17    The appellant’s complaint with regard to procedural fairness is that at no stage during the second Tribunal hearing was the issue of the absence of a “structured and actuarial approach to an assessment of the risk of reoffending” raised by the Tribunal until it was raised in its reasons contrary to the interests of, and adverse to, the appellant. The appellant submits that the Tribunal having acknowledged in its reasons that assessing the evidence and giving due attention to how the various considerations should be weighed individually and then cumulatively “had not been an easy exercise”, and that the question of the risk of the appellant reoffending was the most singular and important consideration weighing on the Tribunal’s mind, the failure to put the Tribunal’s concern with regard to Mr Cicchini’s analysis and approach was a material error that led to practical injustice.

18    The appellant notes that the primary judge had said, with respect to the absence of a structured and actuarial approach, that “it is far from clear to me that this was in fact the ‘determining factor’”, and submits that in that respect the primary judge was in error. On this basis he submits that the primary judge misunderstood the Tribunal’s decision.

Consideration and disposition

19    The statutory framework within which a decision-maker exercises its statutory power is of critical importance when considering what procedural fairness requires. Also, the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

20    In the present case, as in SZBEL, no submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act; attention was rather directed principally to the particular circumstances of the case.

21    The appellant’s application to the Tribunal for review of the delegate’s decision was made under s 500(1)(ba) of the Act. Since it was common ground that appellant did not pass the character test, the issue for determination under s 501CA(4)(b)(ii) of the Act was whether there was “another reason why the original decision should be revoked.” The mandatory relevant considerations for such a decision were set out in Direction No 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which in turn identified as a primary consideration “the protection of the Australian community from criminal or other serious conduct.” Within that primary consideration, the decision-maker had to have regard to “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 reoffending.” Those were matters made explicit in Direction No 79 and they were well appreciated by the appellant’s counsel and solicitor before the first and second Tribunal hearings which is evident from the structure of the submissions that were made that covered these matters.

22    Thus, the requirement of the rules of procedural fairness that “the party affected be given the opportunity of ascertaining the relevant issues”, as referred to in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 and affirmed in SZBEL at [32], was fulfilled. It is the other requirement identified there, namely that the person affected by the decision “be informed of the nature and content of adverse material” that is engaged in this case.

23    In SZBEL it was found that the appellant had not been accorded procedural fairness. That was because nothing had been said to the appellant by the Tribunal that would have revealed to him that the points on which the Tribunal’s decision ultimately turned were live issues in the case (at [43]). It was held (at [44]) that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or to make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

24    Turning to the present case, in our view there is no error in the reasoning of the primary judge. That is because we share his Honour’s conclusion that the absence of “a structured and actuarial approach to an assessment of the risk of reoffending” by Mr Cicchini was by no means determinative in the Tribunal’s reasoning. The Tribunal was troubled by having insufficient evidence and no contemporaneous evidence on the question of the risk of the appellant reoffending. Fairly read, what the Tribunal said about the absence of a structured and actuarial approach to an assessment of the risk of reoffending was that had it had such evidence it would have been helpful. That is to say, what it said on the topic was not so much a criticism of Mr Cicchini’s evidence but an identification of what it did not have and what might have made things different. As far as it went, the Tribunal accepted Mr Cicchini’s evidence – it accepted Mr Cicchini’s diagnosis of the appellant, its origins in the traumatic events surrounding his childhood and that the appellant’s mental health had improved. The Tribunal’s remarks that the appellant seeks to impugn go only to identifying the nature of Mr Cicchini’s evidence, and its limitations, rather than criticising it on some fresh or previously unidentified basis.

25    The reality is that one can put what was said by the Tribunal about the absence of a structured and actuarial approach to an assessment of the risk of reoffending to one side, and one is still left with the Tribunal being dissatisfied with the value of Mr Cicchini’s evidence on the material question. That is because his views had been expressed more than two years previously, he had not given evidence so his views could neither be tested nor updated, he did not express a direct view on the material question of risk of reoffending, and in any event he was not in a position to do so because he was not familiar with the appellant’s history of offending. Indeed, Mr Cicchini’s own evidence had been that he had assumed that some other specialist would be responsible for that task. Understood in that light, the Tribunal’s excursus on a structured and actuarial approach was surplusage and immaterial.

26    In short, the criticism, if it was that, of Mr Cicchini’s evidence on the basis that he failed to adopt a structured and actuarial approach was not really to the point in the Tribunal’s assessment of Mr Cicchini’s evidence. To the point was that the evidence did not directly address the relevant question, being the risk of recidivism, and to the extent that it said anything relevant to that question it was out of date, he had not been made available for cross-examination and he had not studied the appellant’s criminal history.

27    With full appreciation of the importance of the issue of the risk of reoffending, the appellant was content to rely on what Mr Cicchini had put in writing, both in the form of his report and his earlier testimony, and to make submissions about the weight to be attached to it, without calling him as a witness. In those circumstances, the Tribunal cannot be criticised for not having put to Mr Cicchini any concerns as to the inadequacy or insufficiency of Mr Cicchini’s evidence that it might have had.

28    Moreover, there was no “practical injustice” in the approach taken by the Tribunal. See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38] per Bell, Gageler and Keane JJ. The appellant was on notice that his risk of reoffending was at issue before the second Tribunal and that Mr Cicchini’s report and previous oral evidence were not accepted by the Minister. Indeed, the first Tribunal had noted that Mr Cicchini had confirmed that he was unaware of the appellant’s criminal history and that his role was not to provide a forensic examination of that criminal history. The first Tribunal had concluded that it was highly probable that the appellant would inflict violence in the future and that his recent violent conduct was an indication of his future conduct. It cannot be suggested that the potential weakness of relying on the same material could come as a surprise.

29    Prior to the commencement of the remitted proceeding, the Tribunal and the Minister had been given to understand that the applicant would be calling Mr Cicchini to give updated evidence, but in the event he called neither him nor any other expert to more directly address his risk of reoffending. In those circumstances, the appellant was not prevented in any way from presenting a case on that issue and the case that he did present was, for the reasons given by the Tribunal, extremely weak. Mr Cicchini never expressed a direct opinion on the appellant’s risk of reoffending and he eschewed any suggestion that he had been tasked with doing so. Indeed, it can hardly be said that he could have expressed an opinion, expert or otherwise, upon which it was open to the Tribunal to place any weight when he had not studied the appellant’s history of offending.

30    For those reasons, the appeal should be dismissed. There is no apparent reason why the appellant should not pay the costs of the appeal.

31    In the circumstances, the appeal should be dismissed with costs.

Associate:

Dated:    4 June 2021