Federal Court of Australia

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

THE COURT

1    It is beyond doubt that the task of the Administrative Appeals Tribunal, when reviewing a decision not to revoke the mandatory cancellation of a non-citizen’s visa on character grounds, is to give active intellectual consideration to representations that were clearly made by an applicant: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 [37]; Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27].

2    It is similarly uncontroversial that there is no general prohibition on the Tribunal finding that a person has engaged in conduct that constitutes a criminal offence as a step on the road to exercising a statutory power, such as that contained in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth): Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33].

3    The appellant contends that the primary judge should have found that the Tribunal failed to engage in an active intellectual process with respect to significant and clearly articulated representations. Specifically, the appellant contends that his claim to fear a risk of harm in Iraq due to the lack of safe drinking water, acute electricity shortages, government corruption and the lack of employments opportunities were simply not considered by the Tribunal (Ground 1).

4    Further, the appellant contends that the primary judge should have found that the Tribunal’s reliance on uncorroborated and untested evidence in forming a view about his risk of harm to the community was legally unreasonable. It is said that the Tribunal relied on uncharged allegations referred to in a summary of offending, that contained reference to South Australian Police (SAPOL) Records. The appellant’s specific complaint, at least as articulated in the notice of appeal, is that the Tribunal unfairly and unreasonably formed a view about an unacceptable risk to the community on the basis of hearsay evidence that had not been tested or corroborated (Ground 2). As is discussed below, the character of that complaint shifted during oral argument.

5    For the reasons that follow, the appeal must be dismissed.

Procedural history

6    As appears from the Reasons of the primary judge, the appellant’s Class BB Subclass 155 Resident Return visa was cancelled by the Minister on 14 December 2016 following the appellant’s initial conviction for intentionally causing harm and his subsequent conviction for cultivating a commercial quantity of a controlled plant. The appellant was sentenced to a cumulative period of imprisonment of four years and four months, with a non-parole period of two years and three months, triggering the mandatory cancellation of his visa pursuant to s 501(3A) by virtue of his substantial ‘criminal record’ (s 501(6)(a)) within the meaning of s 501(7)(c) of the Migration Act.

7    The appellant made representations in support of his application for revocation of that decision on 4 January 2017. That application was refused by the Minister on 24 February 2017. The appellant’s subsequent application to the Tribunal for review of that decision was refused on 19 May 2017. On 12 September 2018, the decision of the Tribunal was quashed (by consent) by a single judge of this Court and the matter was remitted to the Tribunal.

8    On 13 September 2018, prior to the review by the reconstituted Tribunal, the appellant unsuccessfully applied for an Onshore Protection visa (Class XA, subclass 866). The Migration and Refugee Division of the Tribunal affirmed the decision to refuse the appellant a protection visa on 11 September 2019.

9    Before the newly constituted Tribunal, the appellant relied on the material he had provided to the Tribunal for hearing in 2017, a statement of facts, issues and contentions dated 16 November 2019 (Appellant’s SFIC), a statement dated 16 December 2019 (2019 Statement), and a letter from his partner dated 21 March 2019. That Tribunal affirmed the Minister’s decision not to revoke the decision to cancel the appellant’s visa in its decision and reasons for decision of 31 January 2020 (Tribunal’s reasons).

Ground 1

10    Before the Tribunal, the appellant contended in the Appellant’s SFIC, at [33]-[34]:

A range of country information has now been provided that establishes that protesters throughout Iraq are subject to being killed, beaten, arrested, tortured, assassinated, silenced, and ‘disappeared’. We contend that as a protester, [the Applicant] will plainly face a real risk of violation of his rights.

Country information also confirms that the instability has created an environment where crime and violence is thriving, and where extremism is on the rise. We therefore contend that even if [the Applicant] was not actively involved in the protests, he still faces a real risk of serious harm if returned to Iraq.

11    In the 2019 Statement, the appellant said:

1.    This statement is provided in support of my remitted appeal to the Administrative Appeals Tribunal concerning the cancellation of my visa.

2.    I understand that the decision to refuse my Protection visa was recently affirmed by the Administrative Appeals Tribunal. However, the situation in Iraq and in my home city of Basra has continued to deteriorate and so I confirm I still fear that I will face serious harm if I am to be removed to Iraq. I confirm that I wish for my fears of harm to be considered under Australia’s non-refoulement obligations.

3.    My home city of Basra is currently facing widespread protests due to the horrible living conditions. The protests are due to the lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities.

4.    I completely support these protests and have been keeping up to date by watching the news, watching videos on youtube, and talking to friends and family. My two brothers are actively participating in the protests – my brother is a victim of the lack of opportunities because even though he is well-educated there are no jobs.

5.    If I am removed, I will feel compelled to join in on the protests. I am someone who feels very strongly about speaking out about corruption and abuse of power. For instance, while in immigration detention I was an active participant in the hunger strike. Our goal was to draw attention to our view that some of the guards were abusing their power, and also to highlight our concerns regarding our living conditions and lack of rights. These are the same types of issues facing the people of Iraq.

6.    As a protester, I know that my life will be at risk as the protests have become extremely violent. Hundreds of people have already been killed and thousands more injured by the Iraqi security forces and militias. I fear that I will be killed, beaten, unlawfully detained, or threatened. For instance, my family’s neighbour’s husband was recently killed while attending a protest. However, I will have no choice because unless things change in Basra, there is no life or future for me or my family.

7.     Even if I were not to take part in the protests, my life would still be at risk due to the generalised violence in Basra. Furthermore, the actions of the Iraqi government in violently cracking down on protestors rather than taking steps to fix the issues shows that life in Basra is going to continue to deteriorate to the extent that survival will be very difficult – soon we will have no water, power, or jobs.

12    The gravamen of Ground 1 is that the significant and clearly expressed representations made in paragraphs [3], [6] and [7] of the 2019 Statement, relating to the generalised risk of violence and deteriorating living conditions in Basra due to the lack of safe drinking water, electricity shortages, corruption, and a lack of employment opportunities, were ignored by the Tribunal. It is contended that the Tribunal dealt only with the risk of harm associated with participating in protest activity in Basra and failed to give consideration to whether the appellant would face a situation in Basra where he will have no access to water, power or jobs.

13    In considering the ‘Other considerations’ as it was required to do so under Ministerial Direction 79, the Tribunal set out the 2019 Statement (Tribunal’s reasons at [46]) before proceeding to consider the evidence as to the deteriorating circumstances in Iraq when considering Australia’s international non-refoulement obligations (Direction 79, para 14.1) It concluded:

48.    Evidence of the deteriorating circumstances in Iraq is found in the updated advice from the Department of Foreign Affairs and Trade current as at 14 November 2019, which refers to large, violent protests taking place since 1 October 2019 and that security forces have used tear gas, water cannons and live ammunition against protesters. The applicant provided further evidence from journalist reports in November 2019 referring to the spread of violent protests across the country. The protests are expected to continue because the authorities in Iraq are not addressing the issues. It is reported that the Iraqi government has begun growing more authoritarian in response. There is a reference to a peaceful sit-in at Basra being broken up by security forces using live bullets, tear gas and sound bombs against demonstrators.

49.    I accept the evidence of the applicant regarding the escalating protests in Basra and his brothers’ participation in those protests, but I note that his brothers have not been injured whilst protesting. The applicant says that he will feel compelled to join in on the protests. The respondent submits that it is the applicant’s choice as to whether he participates in these protests and that Australia’s non-refoulement obligations will not be engaged based on speculation as to what the applicant is likely to do in the future. If the applicant is returned to Basra I consider that the situation has deteriorated to the point that there is a real risk of harm to him even if he does not participate directly in the protests. It appears to me that, given the involvement of his family, it is inevitable that he would be caught up in those protests and the violent suppression of them.

…

53.    Given that the legal consequence is that the applicant would be returned to Iraq, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation decision. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including a risk of violence in the event that he were to return to Iraq.

14    In considering the extent of any impediments the appellant may face if removed from Australia to Iraq, in establishing himself or maintaining basic living standards (in the context of what is generally available to other citizens of that country, as required by Direction 79, para 14.5), the Tribunal concluded:

62.    The applicant is 34 years old and generally in good physical health. The applicant’s parents and siblings live in Iraq and would support him if he were to return. No doubt the employment and general economic conditions in Iraq are much worse than in Australia, but the applicant would benefit from having the support of his family some of whom are themselves employed. There are no significant language or cultural barriers. The findings in the MRD decision are relevant in this regard; in particular that the applicant as a member of the Shia population, does not face a real risk of significant harm from extremist groups in Basra on return to Iraq or in the reasonably foreseeable future and that the tribunal found the applicant did not face a real chance of persecution or significant harm for being a failed asylum seeker from a Western country, a returnee who has spent significant time in a Western country or for actual or imputed secular political opinions on account of having spent significant time in a Western country. Nevertheless, it is a relevant factor that the situation in Iraq has deteriorated and that the protests have involved more violence.

63.    As I have already found with respect to non-refoulement obligations, there are significant impediments that would arise if the applicant were returned to Iraq because of the deteriorating situation of violence in Iraq and particularly in Basra. Those matters raised with respect to non-refoulement are also relevant to this factor regarding impediments. The applicant faces a real risk of harm in the nature of violence due to this deteriorating situation. This factor weighs in favour of revoking the cancellation decision.

15    The primary judge held that, fairly read, the Tribunal’s reasons demonstrate active intellectual engagement with the representation relating to the consequences arising from the generalised risk of violence and deteriorating living conditions in Basra and summarised the relevant passages (Reasons at [64]) observing that, the Tribunal:

(1)    found that, in light of country information, the Iraqi authorities are not addressing the issues about which the protests relate, namely, the deteriorating conditions (at [48]);

(2)    accepted the Applicant’s evidence “regarding the escalating protests in Basra and his brothers’ participation in those protests”, which included that his brother was protesting because “even though he is well-educated there are no jobs” (at [49]);

(3)    found that “the situation [in Basra] has deteriorated to the point that there is a real risk of harm to [the Applicant] even if he does not participate directly in the protests” (at [49]);

(4)    accepted that the Applicant “would face significant hardship” in the event that he were to return to Iraq (at [53]); and

(5)    accepted that “employment and general economic conditions in Iraq are much worse than in Australia” and, notwithstanding that the Applicant was refused a protection visa “it is a relevant factor that the situation in Iraq has deteriorated and that the protests have involved more violence” (at [62]).

16    The Tribunal’s reasons must be read as a whole: Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611 at [56]. Immediately before the commencement of its consideration of the consequences arising from the generalised risk of violence and deteriorating living conditions (Tribunal’s reasons at [48]), the Tribunal had recited the appellant’s claims as set out in the 2019 Statement (Tribunal’s reasons at [46]), which stated, inter alia, that ‘the situation … in Basra has continued to deteriorate’, ‘is currently facing widespread protests due to … lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities’, ‘our goal [in protesting] was to … highlight our concerns regarding our living conditions’, and ‘Basra is going to continue to deteriorate to the extent that survival will be very difficult – soon we will have no water, power, or jobs’. At [47], the Tribunal set out those paragraphs of the Appellant’s SFIC ([33] and [34]) which referred to country information about the instability in Iraq which has led to the thriving of crime, and violence.

17    The finding set out at (1) above, namely that the issues about which the protests relate are not being addressed, cannot be referrable to anything other than the appellant’s representation contained in the third paragraph of the 2019 Statement – ‘Basra is currently facing widespread protests due to the horrible living conditions. The protests are due to the lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities’. It is tolerably clear that the Tribunal has encapsulated the element of water, power and employment difficulties within the phrase ‘evidence of deteriorating circumstances’. As described in (2) and (3) above, it is clear that the Tribunal has distinguished between the relative risk of protesting, or not, weighed the likely outcome, and concluded that ‘the situation in Basra has deteriorated to the point that there is a real risk of harm to [the appellant] even if he does not participate directly in the protests’. Further, as described in (4), the Tribunal has said in [53], that ‘for the reasons set out above’ – being the evidence of the deteriorating circumstances, at [48]; the evidence regarding the protests and the risk whether or not he protests, at [49]; the real risk of harm, at [50]; the legal consequences of non-revocation, at [51]-[52] – the appellant would face significant hardship including a risk of violence (emphasis added). It is plain that the Tribunal did not restrict itself only to consideration of the risk of harm consequent upon the violent protests.

18    The primary judge referred to the passage in Guclukol (Reasons at [39]) where the Full Court said, at [50]:

There is nothing … which suggests that a finding needs to be made in relation to each submission, argument or claim made by a person who has made representations under s 501CA(3) and it is far from apparent that the decision in Omar sought to depart from it. Indeed, that seems unlikely. The point there articulated was not that there existed any superadded duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they include where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be exercised.

(emphasis of primary judge)

19    The present case does not even rise to the circumstances being contemplated by the Full Court in that passage. An explicit finding was made by the Tribunal about the deteriorating circumstances. The omission of any reference to the individual elements causing the deterioration does not amount to a failure to make a specific finding about an individual claim.

20    Moreover, the Tribunal found (Tribunal’s reasons at [50]) that there is a real risk of harm if the appellant returns to Iraq and that he is owed non-refoulement obligations because the Iraqi authorities are not addressing the underlying issues which have led to the protests, and so the protests are expected to continue (Tribunal’s reasons at [48]). It was a matter that the Tribunal found weighed very heavily in favour of revoking the cancellation decision (Tribunal’s reasons at [53]).

21    The Tribunal found further that the ‘employment and general economic conditions in Iraq are much worse than in Australia’ (Tribunal’s reasons at [62]) and that the impediments this posed to the appellant’s return, because the deteriorating conditions led to more violent protests, weighed in favour of revocation (Tribunal’s reasons at [63]).

22    Even if the Tribunal had made specific findings about the state of potable water, electricity supplies, government corruption, and employment opportunities, it is difficult to discern that there was a realistic possibility that a different decision could have been made by the Tribunal: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38].

23    The primary judge did not err in finding that the Tribunal did engage in a genuine evaluation and active intellectual consideration of the risk faced by the appellant if he were to return to Iraq.

24    Ground 1 cannot succeed.

Ground 2

25    The gravamen of Ground 2, as contended in the notice of appeal, is the Tribunal’s purported reliance on the summary of offences in the reasons of the 2017 Tribunal’s decision which, inter alia, indicated that ‘circumstances of the conduct discussed below are drawn from the Certificate, the SAPOL records relied upon by the respondent …’ (Tribunal’s reasons at [11]). The relevant particulars relied upon by the appellant in the notice of appeal were that the ‘summary contained reference to [SAPOL] records which outline[d] untested and uncharged allegations of criminality’ and that ‘the Tribunal relied on the uncharged allegations’.

26    In his written submissions, the appellant’s primary objection to the SAPOL records was that they contained hearsay evidence. It was submitted that the records themselves are, of their very nature, unfairly prejudicial, particularly in circumstances where an applicant has not had the opportunity to cross-examine the officers who authored the records to contest the truth of the claims made in them. The appellant submitted, on the basis of the decision of McHugh J in Papakosmas v R [1999] HCA 37; 196 CLR 297 at [84], that forming a view on the appellant’s risk of recidivism on the partial basis of hearsay evidence was procedurally unfair.

27    It must be observed at this point that the appellant was legally represented before the Tribunal and had the SAPOL records. Prima facie, there can be no procedural unfairness when the substance of adverse material is made known to the person affected who then has an opportunity to respond to it: Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 at [53].

28    As it developed in oral argument, the complaint of reliance on the SAPOL records simply on the basis of the hearsay rule fell away somewhat, not least because hearsay evidence is admissible in the Tribunal as is made plain by s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth). It was also necessarily conceded by the appellant that much of the other material before the Tribunal relating to the appellant’s convictions and to which no objection could be made, including the sentencing remarks, was of itself hearsay. The complaint evolved to one that the uncharged criminal conduct contained in the SAPOL records was of such a prejudicial nature that it could not be cured by affording the appellant procedural fairness in relation to those records. It was the appellant’s position that they simply should not have been in evidence before the Tribunal because they were sufficient to ‘poison the well’ such that the Tribunal had no opportunity to do its task of evaluating the appellant’s risk of recidivism on the basis of his prior criminal record. The appellant contended that the Tribunal can only assess the risk of recidivism on the basis of evidence of convictions.

29    The summary of the appellant’s criminal history is at [11] of the Tribunal’s reasons (emphasis added at [31]):

11.    The reasons for the 2017 AAT decision summarised the offence for which the applicant was convicted at [28]-[48]. I adopt those reasons and set them out below.

The matters the subject of convictions

28.    The circumstances of the conduct discussed below are drawn from the Certificate, the SAPOL records relied upon by the respondent, a written statement provided by [the applicant] and his oral evidence to the Tribunal. In relation to the 2012 and 2014 offences, I have also had careful regard to the remarks of the sentencing judges.

29.    The following consideration of the evidence as to the circumstances of [the applicant]’s offending is ordered by reference to the date of the offence (in bold).

30.    On 6 March 2008, when he was 22 years old, [the applicant] was convicted for exceeding the speed limit by 15-29 kilometres per hour and fined. The SAPOL records indicate the offence occurred on 29 November 2004.

31.    On 2 February 2006, [the applicant] was convicted for disorderly behaviour, loitering and resisting police and a fine of $200 was imposed. The SAPOL records indicate that [the applicant] was influenced by alcohol and the offence occurred in the early hours of the morning on 10 September 2005. The records indicate that [the applicant] was removed from a club on Hindley Street, Adelaide, after he was observed by police smashing a bottle on the ground inside the club. After being removed, [the applicant] apparently continued his disorderly behaviour, continually yelling offensive words whilst “smashing his fist on a nearby galvanised iron fence”. [The applicant] was apparently requested on a number of occasions to cease loitering and refused to comply. He was subsequently arrested and whilst being arrested, he “violently resisted by jolting his body backwards and forwards in an attempt to break free from police grip”. The police records further indicate that [the applicant] was not interviewed in relation to this matter, due to his “violent and unpredictable behaviour”.

32.    In his oral evidence, [the applicant] said that he was young at the time of this offence and was “drinking at that time”. He said he was drinking and “clubbing all the time every weekend”.

33.    On 2 February 2006, [the applicant] was convicted of failing to comply with a bail agreement and discharged without penalty. This related to the fact that on 10 September 2005, [the applicant] entered into a bail agreement with the condition that he would not enter, attend or be in the vicinity of Hindley Street. On 11 November 2005, the Court ordered that the conditions of the bail agreement were to continue. However, he was subsequently arrested by police in the early hours of 17 December 2005, on Hindley Street, Adelaide.

34.    In his oral evidence, [the applicant] indicated that at the time of this offence he was still very new to Australia and his English was poor. He said he had not understood that bail was continued after his court appearance in ... 2005.

35.    On 12 January 2007, [the applicant] was convicted of disorderly behaviour and resisting police. The SAPOL records indicate that this offence occurred late in the evening on Saturday 28 October 2006 when [the applicant] swore loudly, placed his fist in front of his face trying to fight with police and tried to prevent police from affecting the arrest of other persons. The records further indicate that when police attempted to arrest [the applicant], he resisted them by “violently jerking his body in several directions and trying to break free of police restraining him”. Four officers and the use of capsicum spray were required to subdue and affect the arrest of [the applicant]. [The applicant] pleaded guilty and was fined a total of $350 with respect to the two offences.

36.    On 23 April 2007, [the applicant] was convicted of driving under disqualification or suspension with the offence date being 14 November 2006. He was fined $200. The SAPOL records indicate that this offence occurred in the early hours of the morning when [the applicant] was stopped by police for a breath test, which was negative. However, police also conducted a driver’s licence check which revealed that he was disqualified from driving from 30 August 2006 until 28 February 2007 for breaching provisional conditions. At the time, [the applicant] apparently advised police that he was not aware that his licence had been disqualified. [The applicant] pleaded guilty to this offence and was fined $200.

37.    On 5 March 2008, [the applicant] was convicted of possessing or using a prohibited weapon and fined $500. The offence is recorded as having occurred on 9 February 2008. In his oral evidence, [the applicant] indicated that this related to an extendable baton left at his place by a friend who had been a security guard. This weapon was apparently discovered by police when they searched his premises. [The applicant]’s evidence in this regard is consistent with the SAPOL records. [The applicant] pleaded guilty to this offence and was fined $500.

38.    On 15 March 2012, [the applicant] was convicted of intentionally causing harm – aggravated and given a suspended sentence of two years and 10 months     with a nonparole period of 18 months and a two year good behaviour bond. This offence occurred on 12 April 2009 and [the applicant] pleaded guilty to the offence.

39.    The sentencing judge, Judge Lovell, explained the circumstances of this conduct as follows:

During the evening of Sunday 12 April 2009, [the victim] ... attended the ... cinema ... to watch a movie with a friend of his and a girl whom he knew as [C], but in reality was [Ms B]. He had been set up by [C] who was friends with you, [the applicant]. I have previously sentenced [Ms B] for her role in the attack that occurred on [the victim]. It was her role to make sure that [the victim] ... was in that area that night.

[Ms B] had done this as your co-accused, [Mr A], believed that [the victim] was having a relationship with his female cousin, which was bringing shame to the family. [Ms B] prearranged with [Mr A] to have [the victim] attend at the location in order that the attack may be undertaken.

40.    The precise circumstances of the attack were the subject of a disputed facts hearing before the judge. In his ruling at that hearing, the judge observed as follows:     

[The applicant] was an unimpressive witness. On some matters he was not truthful. As I mentioned, generally speaking I found [the victim] a generally credible witness. I am satisfied that [the victim] was probably correct with his version of events.

…

While I largely reject what [the applicant] said, I am not satisfied beyond reasonable doubt that he actually stabbed [the victim]. I will sentence him on the basis that he was aware that [H] had the knife and may use it. I reject his evidence that he counselled him not to take or use the knife. However, I will not sentence him on the basis that he carried another knife and used it. I reject his version of events that [the victim] had a knife, although I am unable to reject his version of events that at some stage [the victim] had his arms around [H’s] neck in some sort of bear hug.

41.    Accordingly, the applicant was sentenced on the basis that he did not inflict any of the wounds on [the victim] personally, but was aware that [Mr A] had a knife with him.

42.    On 21 October 2010, [the applicant] was convicted of two counts of damaging property and given a good behaviour bond of $500 on the basis that he be of good behaviour for 12 months. The SAPOL records indicate these offences occurred on 16 September 2010. The relevant conduct consisted of smashing a perfume bottle and damaging a washing machine with a baseball bat, causing approximately $200 damage, and also hitting a bedroom door with a baseball bat causing approximately $200 damage. The SAPOL records indicate that when he was interviewed [the applicant] said that he had become angry with his girlfriend because she had lost a lot of money gambling “so he started breaking things with a baseball bat”.

43.    In the course of his oral evidence, [the applicant] claimed that the perfume bottle and washing machine both belonged to him anyway, which reduced the seriousness of his actions. However, the police records and Complaint indicate that the perfume bottle and washing machine belonged to his then partner, [Ms B]. [The applicant] pleaded guilty to the two offences and was given a bond of $500 to be of good behaviour for 12 months.

44.    On 6 March 2012, about a week before his 2012 conviction, [the applicant] was convicted of disorderly behaviour, hindering police and resisting police and fined $1000. The SAPOL records indicate that this offence occurred in the early hours of 28 November 2010 and [the applicant] was affected by alcohol. The relevant conduct consisted of [the applicant] behaving in a disorderly manner on Pulteney Street in Adelaide, by yelling, swearing, threatening violence and behaving in an aggressive manner. The records further indicate that [the applicant] hindered police by running away and resisted police by moving his body about, yelling profanities and trying to pull away and break free from police during the arrest procedure. Prior to being arrested, [the applicant] is also recorded to have threatened “to shoot all persons in the vicinity with a firearm that he was returning with”. The SAPOL records further record that “the accused did not conform to a protracted and detailed interview due to his level of intoxication and belligerent behaviour towards police”. [The applicant] pleaded guilty to all three offences.

45.    On 10 October 2014, [the applicant] was convicted of cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and breach of bond. His previously suspended sentence was revoked and he was given a head sentence of four years and four months (with a non-parole period of two years and three months) which he is still serving. [The applicant] pleaded guilty to the charges of growing cannabis plants for sale and possessing hydroponic equipment. The sentencing judge, Judge Muscat, explained the nature of this offending, on 30 January 2014, as follows:

On 30 January 2014 police officers attended at a house ... which you were occupying at the time. There were four rooms specifically dedicated to the indoor cultivation of cannabis plants. I have viewed the photographs tendered by the prosecution and they reveal a typical indoor hydroponic set-up for the growing of cannabis plants. In total, police found 25 cannabis plants being grown at the house.

46.    He went on to observe:

This is a serious offence, carrying a maximum penalty of a fine of $200000 or imprisonment for 25 years, or both. All of the equipment seized by the police as well as the plants and dried cannabis will be forfeited to the Crown ...

Your offending is made more serious because you committed it whilst you were subject to a suspended sentence. On 15 March 2012, you were sentenced for the crime of aggravated causing harm with intent to cause harm to another man.

47.    As to the precise circumstances of the offending, the judge found:

The present offending occurred in the context of you being recruited by another person to live in a house specifically set up to grow cannabis plants.

I have heard evidence from you this morning as to the circumstances of your involvement in this offending. You had only recently returned from visiting your family in Iraq and found yourself homeless. A Lebanese friend of yours introduced you to a man ..., who you told me was a bikie ... You were offered the occupancy of a house, free of rent and any bills. You were told ... that the house was to be used to grow cannabis plants and that he wanted you to occupy the house and keep an eye on things for him. He told you that, if the police caught you, you were to say nothing to them. He said that you would be looked after in terms of accommodation and being provided with the services of a lawyer in the event of the police charging you.

I accept that you were not involved in the setting up of the four rooms for the cultivation of the cannabis plants; other persons attended to that. However, I do not accept your evidence that you essentially stayed out of those rooms and had nothing to do with the care of the plants. I am satisfied that your role was to occupy the house so as to give it the appearance of legitimacy and, from time to time, to keep an eye on the plants and tend to any needs. Given the setup at the house, there would have been very little for you to do in that regard except perhaps fill the water reservoirs as required.

For your role, you were to receive $5000 in cash. It was your intention to send $3000 of that to your family in Iraq and keep the balance for your own needs, such as accommodation and so on.

You were clearly used by those involved in the commercial cultivation of these plants. …

I accept your evidence that you were in desperate times when you were approached. You were clearly taken advantage of and ... once you were in and the longer you remained in the house, the harder it became to extricate yourself.

48.     With respect to the breach of the suspended sentence, the judge observed:

You had been given the opportunity to reform by a judge and you have failed to do so.

30    Several observations can be made about the foregoing summary. First, it accurately records the appellant’s convictions as they appear on the National Police Certificate of 12 January 2016. The only reference to an ‘untested’ and ‘uncharged’ allegation of criminality is the italicised portion of paragraph [31] above, which conduct appears to have occurred contemporaneously with the conduct for which he was convicted. Secondly, there is no dispute that the remarks of the sentencing judge were accurate. Thirdly, it is apparent that at least some of the commentary relating to some offences came directly from the appellant during his oral testimony before the first Tribunal (Tribunal’s reasons at [11 (32), (34), (37), (43)]).

31    In oral argument, the appellant did not criticise the content of [11]. It was accepted that it contained no direct reference to conduct which did not result in any charges. Rather, his contention was that what was left out of [11], being the content of the SAPOL reports that was not referred to in the Tribunal’s reasons, was the real vice of the Tribunal’s decision. The absence of any reference to the prejudicial material without identifying it as such, so the argument developed, showed that the Tribunal had been cognitively biased when evaluating the appellant’s risk of recidivism.

32    The appellant submitted that it was simply untenable to suggest that the Tribunal did not consider the SAPOL documents in circumstances where they were before the Tribunal and in light of the submissions made by the Minister in her Statement of Facts, Issues and Contentions (Minister’s SFIC), and that such an inference should be drawn against the Tribunal. The Minister had submitted that ‘general conduct which may not have resulted in criminal convictions may also be relevant’ and that ‘which did not result in convictions is entitled to be tested and the [appellant] can give what evidence he chooses about that information’ (Minister’s SFIC at [17]). At [33], the Minister submitted that ‘while no conviction was recorded, it is also of concern that the [appellant] has been accused of violent and intimidating behaviour directed against women, in particular, another previous partner.’ Further, at [52], the Minister submitted that ‘There is other material before the Tribunal that he has been involved in acts of violence although no charges were laid.’

33    The appellant contended that such an inference should be drawn despite there being absolutely no reference to any of that other material in the Tribunal’s reasons and in the face of a submission to the Tribunal by the appellant that it was not proper for the Tribunal to have regard to any of the adverse material released by SAPOL and that it should not be given any weight (Appellant’s SFIC at [14]).

34    The appellant pointed to the Tribunal’s reasons at [23] to evidence that the Tribunal had not acknowledged and discarded the adverse material but had nevertheless subliminally had regard to the material and had adopted the Minister’s submissions when reaching its conclusion as to the risk of recidivism:

23.    These more serious offences where [sic] committed in 2009 and 2013 when the applicant was 23 and 28 years old respectively. He was not a young man at that time. The applicant was 16 years old when he arrived in Australia in 2001. Three years later he committed his first offence and he has offended regularly since then. He was convicted of disorderly behaviour and resisting police in 2006 and 2007 and again in 2012. There were other convictions for possessing and using a prohibited weapon in March 2008 and damaging property in October 2010. I take into account that his offending has been frequent and commenced soon after his arrival with a trend of increasing seriousness. The cumulative effect of his repeat offending is very relevant.

35    In oral submissions, the appellant conceded that there was nothing in the conclusions reached by the Tribunal in [23] that was not open to it on the basis of the offences for which the appellant had in fact been convicted. The inference that this Court is asked to draw therefore depends on the Court’s acceptance that the Tribunal did consider the adverse matters and was not able to put them out of its mind. For the Court to draw such an inference would result in a fetter on the decision-making process of any court or tribunal tasked with fact-finding. It is an integral element of such a process that a decision-maker puts out of his or her mind matters which are irrelevant to the decision-making process and, to the extent that the decision-maker is cognisant of any biases or prejudices, actively seeks to confront those biases or prejudices and consciously disregard them when reaching the ultimate conclusion.

36    Further, the inference this Court is asked to draw is not readily open on the material. When the Tribunal reached the point of considering the nature and seriousness of the appellant’s conduct (Tribunal’s reasons at [21]-[23]), the Tribunal referred only to offences for which the appellant had been convicted before arriving at its conclusion at [23]. Those offences had been canvassed by the Tribunal earlier in its reasons at [11] and, as has already been observed, the appellant made no complaint about the content of [11].

37    As was observed by the primary judge, the Tribunal was required, in the exercise of its statutory duty pursuant to s 501CA(4)(b)(ii) of the Migration Act to undertake an evaluation of the appellant’s future risk to the Australian community (Reasons at [92]). That task was undertaken by the Tribunal in assessing the circumstances that led to his convictions to inform the Tribunal’s assessment of the nature and seriousness of the appellant’s prior offending and risk of re-offending. It is not apparent that the Tribunal made any findings on the basis of the SAPOL records where charges were not pursued and convictions secured.

38    The circumstances of this case are readily distinguishable from those considered by Kenny J in CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; 163 ALD 101 where the Tribunal had clearly relied on alleged incidents of burglary and common assault drawn from police service files but which were never contested before a court (at [98]). Her Honour said, at [99]-[100]:    

I reject the Minister’s submission that the applicant’s conduct as a nine-year-old child was not a significant part of the Tribunal’s decision. This argument is difficult to reconcile with the prominence of the references to this conduct in the Tribunal’s reasons, including in the Tribunal’s conclusion. As already stated, by commencing its consideration of the escalating pattern of seriousness of offending at a time when the applicant could not, by law, be attributed with criminal responsibility, the Tribunal focussed on a consideration that was irrelevant to that supposed pattern. Evidence of the conduct of the applicant at nine years of age was, for the same reason, incapable of providing a logical basis for the Tribunal’s statement that the applicant’s “history of offending” began at this young age. Yet the Tribunal’s conclusion at [120] indicated that the identification of such a pattern and history of offending was an important element in the Tribunal’s decision-making. This is borne out by the fact that such an approach was in apparent conformity with Direction No 65: see [86]-[89] above.

This does not mean that, on review of a decision not to revoke a visa cancellation decision under s 501CA(4)(b)(ii), the Tribunal cannot take into account evidence about a former visa holder’s conduct as a child. Rather, it is to say no more than that evidence of that conduct must have some relevance to an issue that properly arises in the course of the Tribunal’s decision-making and that there must be some logical connection with the inferences or conclusions that the Tribunal then draws from that evidence. It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.

39    It is plain that the Tribunal was focussed on the appellant’s convictions in 2012 and 2014 in reaching an assessment of the appellant’s likely risk to the Australian community. The primary judge was, with respect, correct to conclude that no error had been made by the Tribunal.

40    Ground 2 cannot succeed.

Disposition

41    For these reasons, the appeal must be dismissed.

Associate:

Dated:    16 May 2022