Federal Court of Australia

Ngata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 139

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, 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    The appellant, Mr Ngata, is a citizen of New Zealand. He first arrived in Australia in June 2010 and has regularly travelled between here and New Zealand since that time. In November 2019, Mr Ngata re-entered Australia as the holder of a TY Subclass 444 Special Category (Temporary) visa issued under the Migration Act 1958 (Cth).

2    Whilst in Australia Mr Ngata committed an offence of grievous bodily harm for which he was convicted and sentenced to 19 months imprisonment (the 2019 offence). As a consequence of that criminal history, Mr Ngata is a person who cannot pass the character test prescribed in s 501(6) and s 501(7) of the Act.

3    On 17 February 2020 a delegate of the then-named Minister for Home Affairs cancelled the visa in the mandatory exercise of a power conferred by s 501(3A) of the Act (cancellation decision). On 8 December 2020, a different delegate decided not to revoke the cancellation decision under s 501CA(4) of the Act (non-revocation decision). The Administrative Appeals Tribunal affirmed the non-revocation decision.

4    Mr Ngata made an application to this Court for judicial review of the Tribunal’s decision under s 476A of the Act. The primary judge dismissed the application:  Ngata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 906. This is an appeal from that judgment.

5    To succeed on his application for judicial review it was necessary for the appellant to show that the Tribunal committed jurisdictional error:  Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was not sufficient to show that a condition on the exercise of the power had been breached. Rather, as Keifel CJ, Gageler, Keane and Gleeson JJ said in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 (at [39]):

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(original emphasis, footnote omitted)

6    See also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ (at [29] – [31]).

7    By his amended notice of appeal, the appellant contends that the primary judge erred in failing to uphold three grounds for judicial review advanced at first instance, to the effect that the Tribunal:

(1)    failed to comply with the rules of procedural fairness by relying on information it obtained from the New Zealand Department of Corrections website which he submits was adverse to him and about which he had not been afforded an opportunity to comment;

(2)    made a finding concerning the appellant’s risk of re-offending that was illogical or otherwise legally unreasonable; and

(3)    made an erroneous finding that two of the appellant’s children had been placed in care by child protection authorities without appreciating that the authorities had in fact placed the children in his care.

8    Whilst judgment on this appeal was reserved, Mr Ngata voluntarily returned to New Zealand. He nonetheless pressed for relief on the appeal.

9    For the reasons that follow, the primary judge did not err in the manner alleged.

10    It follows that the appeal must be dismissed.

THE TRIBUNAL’S REASONS

11    There is no dispute that the appellant is a person who cannot pass the character test. The issue before the Tribunal was whether there was “another reason” to revoke the cancellation decision, as that phrase is used in s 501CA(4) of the Act.

12    Section 499 of the Act required that the Tribunal comply with a direction issued by the Minister in respect of the exercise of the power under s 501CA(4), titled “Direction No. 79 – Visa refusal and cancellation under s501” (the Direction). It required that the Tribunal have regard to the protection of the Australian community from criminal and other serious conduct as a “primary consideration”.

13    On that topic, the Tribunal evaluated the nature and seriousness of the appellant’s prior offending and the risk to the Australian community should he commit further offences or engage in other serious conduct.

14    The Tribunal took into account a conviction recorded against the appellant in 2014 in respect of a violent assault he committed in New Zealand in 2013. For that offence, the appellant was sentenced to a period of home detention of eight months, 150 hours of community work, and he was ordered to pay reparations.

15    The Tribunal found (and it was not disputed) that the appellant had not disclosed that earlier conviction on 12 incoming passenger cards when re-entering Australia between 2014 and 2019. That circumstance had been referred to by the Minister’s delegate in the decision under review and was the subject of submissions and evidence before the Tribunal. The issue was whether Mr Ngata had made the false declarations knowingly.

16    The appellant’s evidence was to the effect that at the time of completing the incoming passenger cards he had not appreciated that he had been convicted of the 2013 offence. Through his lawyer, he submitted to the Tribunal that he had no familiarity with the criminal justice system and so could not be presumed to have understood that a conviction had been recorded.

17    The Tribunal noted that the conviction for the 2013 offence had been incorrectly recorded under an alias (a circumstance for which the appellant was not responsible) such that it was not disclosed on criminal record checks against the appellant’s correct name.

18    The Tribunal then summarised the evidence of the appellant and his partner which asserted that:

(1)    during the period of home detention the appellant and his partner lived together with their two young sons;

(2)    the sentence of home detention had an impact on the appellant’s partner at the time because the appellant could not provide for her and was stuck at home;

(3)    the appellant was unaware of the conviction including because after his home detention was complete and prior to him leaving New Zealand, criminal history checks relating to his employment (including an application for a security licence) did not reveal any convictions; and

(4)    both the appellant and his partner were under the impression that as the appellant had only received home detention and it was his first time being in trouble, he had been found guilty without any conviction recorded.

19    The Tribunal referred to the New Zealand Department of Corrections website, reproducing the following extract (at [65]):

Home detention is both a punitive and rehabilitation sentence. It requires an offender to remain at a suitable and approved residence at all times and be monitored 24 hours a day, seven days a week.

Offenders on home detention must also complete programmes designed to address the causes of their offending.

The sentence can address both the rehabilitation and re-integration needs of an offender, while placing restrictions on them such as being confined to a specific location, and special conditions such as electronic monitoring.

…

Home detention is an alternative to imprisonment and is intended for offenders who otherwise would have received a short prison sentence (of two years or less) for their offending.

(original emphasis)

20    The Tribunal went on to say:

66.    In light of the significance of the sentence imposed upon Mr Ngata for the 2013 offence, particularly in terms of its impact on him and his family, the Tribunal does not accept that Mr Ngata was unaware that the 2013 conviction was a criminal conviction in the conventionally understood meaning of the term. The Tribunal accepts the Respondent’s argument that having attended court, pled guilty to the offence and subsequently applied for conditions of his home detention to be altered, it is reasonable to expect that Mr Ngata had a greater familiarity with the criminal justice system than he now contends he did. As such, in answering ‘no’ to the question ‘do you have any criminal conviction/s?’, it is accepted by the Tribunal that Mr Ngata knowingly provided false information on the 12 incoming passenger cards dated between 2014 and 2019.

67.    However, in circumstances where Mr Ngata received a security licence with no indication that he had a registered conviction, the Tribunal places less weight on his failure to declare the offending on his incoming passenger cards.

21    The Tribunal observed that the appellant had appealed the more recent grievous bodily harm conviction to the Australian Capital Territory Court of Appeal, which appeal was unsuccessful:  Ngata v The Queen [2020] ACTCA 18. The Tribunal had regard to remarks of the sentencing judge to the effect that whilst the violent attack had not been pre-meditated, the appellant’s conduct and his moral culpability in respect of that offence were serious. It noted that the sentence imposed on Mr Ngata for the grievous bodily harm offence was “at the lower end of the spectrum” for convictions of that kind. It also noted that the sentencing judge had proceeded on an erroneous assumption that Mr Ngata had no criminal history, and that the Court of Appeal had described the sentence as “merciful”. The Tribunal concluded that Mr Ngata’s acts of violence were “sufficiently damaging that they should be viewed very seriously”. It said that the injuries suffered by the victim of the 2019 offence were life threatening and concluded that if Mr Ngata were to engage in conduct similar to that engaged in by him in the past there was a “significant risk of serious catastrophic injury or even death to members of the community”.

22    As to the likelihood that Mr Ngata would engage in further criminal activity, the Tribunal summarised at some length the submissions the appellant had made about the 2019 offence to the effect that:

(1)    the offending was out of character;

(2)    he took full responsibility for what he had done and had not tried to deny or downplay the offending;

(3)    at the time of the offence he was “dealing with a lot”, including a breakdown of a relationship resulting in loss of contact with his sons;

(4)    he had been drinking heavily at the time of the offending, which was something he did not do very often and did not intend to do again;

(5)    he had bettered himself mentally, physically and spiritually and had found ways to cope with his emotions in a positive way;

(6)    he was suffering from untreated depression and stress at the time the offending;

(7)    his sister had been diagnosed with cancer at around that time and his father had suffered a major heart attack requiring surgery;

(8)    he was remorseful;

(9)    he had been verbally provoked by the victim by way of racist comments and threats;

(10)    he was immediately ashamed of his actions and now disgusted by them; and

(11)    he had apologised to the victim and had paid $3,000 by way of “compensation”.

23    The Tribunal went on to summarise evidence by a clinical psychologist, Dr Danielle Clout, who expressed the opinion that Mr Ngata was “extremely remorseful” and that in her assessment he was “not considered to pose any risk to the Australian community”. The Tribunal noted that in sentencing Mr Ngata for the 2019 offence, the sentencing judge had heard evidence from Dr Clout about the asserted impact of Mr Ngata’s depressive illness. The sentencing judge had not accepted the submission that the mental health condition contributed to the offending conduct. The sentencing judge had noted that in the year prior to the offending, Mr Ngata had continued to pursue competitive kickboxing which would have required significant motivation and drive. The Tribunal had before it newspaper articles evidencing the degree of Mr Ngata’s activities in pursuing a kickboxing title at that time.

24    The Tribunal noted that the victim of the 2019 offence had expressed positive views about Mr Ngata, including that he considered the offending to be out of character.

25    The Tribunal concluded that there nonetheless remained a risk that Mr Ngata may re-offend having regard to the following considerations (at [102]):

(a)    the observations made by Mossop J in the sentencing remarks that Mr Ngata’s mental state at the time of the offending does not reduce his moral culpability or responsibility for the offending;

(b)    Mr Ngata’s account of his poor mental state at the time of the offending is undermined by his demonstrated capacity to continue to train for and promote his involvement in kickboxing during that period;

(c)    Dr Clout’s treatment of Mr Ngata was brief relative to the seriousness of the offence and not suggestive of any significant psychological disorder; and

(d)    though remorseful and aware of the injuries he had inflicted and later pleading guilty at the earliest opportunity to the charges, Mr Ngata did not proactively engage with the police but waited until he was contacted by them.

26    The Tribunal said that there was a “real, if reduced, possibility that Mr Ngata may re-offend” and that should he do so, the nature and seriousness of his offending represented an unacceptable risk of harm to members of the Australian community. It said that that primary consideration weighed heavily in favour of not revoking cancellation decision.

27    In accordance with the Direction, the Tribunal went on to consider the best interests of Mr Ngata’s four minor children (all of whom live in Australia) as another primary consideration. Two of his sons were New Zealand citizens who lived in Queensland with their mother, Mr Ngata’s former partner. Two younger children lived in Canberra with their mother. Both mothers confirmed (and the Tribunal accepted) that Mr Ngata played an active role in raising the children and was a nurturing father. The Tribunal accepted that Mr Ngata provided emotional, psychological and financial support to the older children who visited him in Canberra and that he travelled to Queensland to see them. It noted that it was not a realistic option for the children to live in New Zealand.

28    The Tribunal set out some history concerning Mr Ngata’s former partner. It noted that in the three years between 2016 and 2019 the relationship worsened and Mr Ngata had been “intermittently cut off from having any form of communication or contact with the kids” during which he “would not hear from or see them for months at a time”. The Tribunal continued (at [110]):

Noting that Mr Ngata’s eldest sons were for a period placed in the full-time care of Queensland Child Protective Services, Dr Clout writes in a statement that it is important that from a ‘clinical perspective’ Mr Ngata be able to remain as an alternative parent in Australia. She considers that ‘being placed in foster care would have significant risks for the boys [sic] long-term wellbeing’. In relation to the two youngest children, Dr Clout opines that the additional stress that Mr Ngata being deported would have on Mrs Ngata would contribute to ‘negative emotional, social, behavioural, and educational outcomes for the children’.

29    The Tribunal went on to refer to evidence given by Mr Ngata, Dr Clout and another psychologist all of which was to the effect that the children would be adversely affected should Mr Ngata be removed from Australia.

30    The Tribunal concluded that it was in the best interest of all of the children that the cancellation decision be revoked. It accepted that Mr Ngata loved the children, that he had regular meaningful contact with them, and that he supported them emotionally and financially. It accepted that the older children were anxious about the prospect of non-revocation and that it would be more difficult for them to see their father should he be returned to New Zealand. However, the Tribunal noted that the older children lived interstate with their mother and her partner and that they were “expected to continue to do so”. The circumstance that Mr Ngata intended to continue to reside in Canberra meant that less weight should be afforded to the interests of those children. The Tribunal concluded that if the cancellation decision was not revoked it would be disruptive for the younger children, it would be more difficult to build a relationship with their father and for him to be physically present with them, and it would also be more difficult for their mother to care for them without Mr Ngata’s presence and support.

31    The Tribunal said that the best interests of all four children (as well as other minor nieces and nephews) weighed heavily in favour of revocation, “but not determinatively so”.

32    The Tribunal went on to consider other matters referred to in the Direction most of which weighed in favour of revocation.

33    The Tribunal then weighed the countervailing considerations as follows:

150.    I have considered the specific circumstances relating to Mr Ngata as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.

151.    Mr Ngata’s offending was a crime of violence which resulted in serious harm to an innocent member of the community. It was an ‘out of character’ offence and for the reasons set out above the Tribunal is not satisfied that the explanation for the offending and Mr Ngata’s rehabilitative efforts are sufficient relative to the very serious harm reoffending in a similar manner may cause.

152.    Mr Ngata is a family man who has four minor children in Australia. Two of his children live interstate and will be impacted by his removal, though to a lesser extent than might otherwise be the case. His two youngest children will be heavily impacted by his removal, particularly if Mrs Ngata chooses to remain with them in Australia. This consideration weighs strongly in favor [sic] of revoking the mandatory cancellation decision.

153.    Mr Ngata’s ties to the community weigh in favor [sic] of revoking the cancellation decision. In the relatively short period in which he lived in Australia he has made a contribution to the Australian community, most notably through the role he has played in the lives of his relatives and friends.

154.    Having considered all these factors and the circumstances of this application, the Tribunal concludes that on balance, the weight of the primary considerations of the risk to the Australian community and the expectations of the Australian community outweigh the combined weight of the primary considerations of the best interests of the minor children and the strength, nature and duration of Mr Ngata’s ties to the Australian community. Consequently, the Tribunal will affirm the reviewable decision.

34    The reasons of the primary judge will be summarised in the course of disposing with each ground of appeal.

GROUND 1

35    At first instance, it was alleged that the Tribunal failed to discharge its obligation to afford Mr Ngata procedural fairness because it had relied on information it obtained from the New Zealand Corrections website, without providing the information to him and affording him an opportunity to respond.

36    The primary judge said that it was not apparent why the Tribunal had found it necessary to obtain and have regard to the information “in order to make findings as to whether the applicant had knowingly provided false information on the incoming passenger cards”. His Honour said it was difficult to see what, if any, probative value the information could have had on the Tribunal’s reasoning in the absence of any suggestion that Mr Ngata had himself accessed the website. The primary judge said that it was nonetheless apparent that the Tribunal had placed some weight on the content of the website in reasoning that the false declarations had been made. The primary judge continued (at [69]):

…  It might reasonably be thought that in doing so, the Tribunal regarded the Website Information as ‘credible, relevant and significant’ to the decision that it made, which would prima facie give rise to an obligation on the part of the Tribunal to put the information to the applicant in order to comply with its obligations to provide procedural fairness:  Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [16]-[17] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

37    The primary judge went on to conclude that he was not satisfied that there was a realistic possibility that a different decision could have been reached by the Tribunal had Mr Ngata been given an opportunity to respond to the information, for these five reasons (at [71]):

…  First, the question of whether the applicant was aware that he had received a conviction was squarely addressed by him in the course of the hearing before the Tribunal and he had addressed that issue in detail. Second, there was no suggestion that any of the content of the Website Information was false. Third, it would appear that the only conceivably relevant response that the applicant could make to the Website Information was that he had not accessed that page of the website of the New Zealand Department of Corrections website and was not aware of its contents at the time that he completed each of the incoming passenger cards. Fourth, given the relevant issue was the knowledge of the applicant, not the objective position, its material relevance to the ‘knowingly false’ finding is at best speculative. Finally, and in any event, the Tribunal discounted the weight it attached to the ‘knowingly false’ finding because of the non-disclosure of the conviction on the applicant’s security licence.

(original emphasis)

38    The first ground of appeal is expressed as follows:

The primary judge erred by concluding that the Second Respondent (Tribunal) had not made a jurisdictional error of denial of procedural fairness in relation to the information it obtained from the New Zealand Department of Corrections website (information).

Particulars

a.    The primary judge accepted at [69] that the Tribunal ‘placed some weight on the content of’ the information ‘in making its finding that’ the Appellant ‘had knowingly provided false information and that it regarded the information as adverse to the position advanced by’ the Appellant;

b.    The primary judge found at [69] that the Tribunal was prima facie obliged by procedural fairness to put the information to the Appellant;

c.    However, the primary judge found at [70]-[71] that the Appellant had not established that the Tribunal’s error in this respect was material;

d.    The primary judge erred as to materiality as: (i) the information was the objective basis on which the Tribunal considered the Appellant to have a criminal conviction based on the 2013 offending; (ii) the Appellant’s denial of knowledge of the criminal conviction could not be fairly made or properly assessed without his having had access to the information; (iii) the reduced weight given the knowing falsehood by the Tribunal was not enough to render the denial of procedural fairness inconsequential;

e.    In any event, and if necessary subject to a grant of leave, the information gave rise to a denial of procedural fairness and was material to the Tribunal’s decision apart from the matter of knowing falsehood as: (i) the Tribunal noted the observation of the sentencing judge that the Appellant ‘has no criminal history’ and that this ‘may have been a mitigating factor in sentencing’ and an appellate description of the sentence as ‘merciful’; (ii) the Tribunal effectively disregarded or downgraded the Appellant’s sentence for the 2019 offending in light of the information; (iii) given the opportunity to comment on the information or the issue of the correctness of the sentence, the Appellant could have sought to resist any criticism of the sentence for the 2019 offending, particularly to the effect that it was appropriate even in light of the information.

39    By a notice of contention, the Minister contends that the primary judge “did not determine whether there had been a breach of procedural fairness, but found that assuming there had been, it was not material”. The Minister contends that the Tribunal did not breach a procedural fairness obligation at all in respect of the procedural fairness obligation.

Principles

40    In the discharge of its powers of review the Tribunal was unquestionably obliged to comply with the rules of procedural fairness:  Kioa v West (1985) 159 CLR 550, Mason J (at 594). In the present case the content of the obligation was as explained by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 590 – 592):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material:  Dixon v Commonwealth (1981) 55 FLR 34 at 41.  …

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect on the outcome, he or she should be given the opportunity of dealing with it:  Kioa v West at 587 (Mason J), 628 (Brennan J).  …

Where the exercise of a statutory power attracts the requirement for procedural fairness, person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  …

(emphasis added)

41    Mr Ngata’s submissions proceed from an assumption that the information the Tribunal obtained from the New Zealand Corrections website was weighed by the Tribunal in reasoning to its adverse conclusion that Mr Ngata knowingly made false declarations on the incoming passenger cards. For the purposes of what follows it may be accepted that the finding that Mr Ngata knew that his declarations were false was material to the outcome, notwithstanding that the Tribunal said that it would not afford the circumstance much weight.

42    The fact that Mr Ngata was convicted of the 2013 offence was not disputed, nor were the underlying facts constituting the offence. Nor was it disputed that the sentence of home detention was imposed upon the recording of a conviction. The fact in issue (and the subject of the adverse finding) was whether Mr Ngata was aware of those matters at the time that he completed the incoming passenger cards between 2014 and 2019. It is necessary to consider whether the Tribunal employed the information obtained from the New Zealand Corrections website in reasoning to that conclusion.

43    In our view, the content of the information obtained from the website was not controversial. It did nothing more than to confirm that a sentence of home detention may be imposed as an alternative to imprisonment, that the sentence was not insignificant and (impliedly) that it may be imposed in respect of an objectively serious offence.

44    It is true that the objective seriousness of the offending and the impact of the sentence were factors leading to the Tribunal to reject Mr Ngata’s submissions about his knowledge and state of mind. However, those objective matters are consistent with Mr Ngata’s own submissions. The Tribunal’s reasons for rejecting Mr Ngata’s evidence and submissions concerning his knowledge of the conviction do not incorporate any finding that Mr Ngata accessed the website, and nor is there a basis for imputing any such finding to the Tribunal.

45    It was then submitted that the Tribunal employed the information from the website to reach a conclusion that the sentence imposed for the 2019 offence was low and so did not reflect its seriousness, and that had the website information been provided to Mr Ngata, he may have submitted that the sentence for the 2019 offence would “nonetheless have stood” even if the sentencing judge had been made aware of the earlier conviction. We do not accept that submission.

46    The Tribunal did indeed consider the sentence for the 2019 offence to be merciful such that it did not fairly represent the seriousness of the crime. However, the Tribunal based that conclusion on the acts constituting the offence, its impact on the victim, the circumstance that the sentencing judge was unaware of the prior criminal offending and on the remarks of the Court of Appeal to the effect that the sentence was merciful. There is nothing expressed in the reasons of the Tribunal to suggest that its conclusion on that discrete topic was in any way informed by the information it obtained from the website. The content of the website does not readily support such an inference.

47    The information was not “adverse” to Mr Ngata in the requisite sense and there was accordingly no breach of the rules of procedural fairness. The Minister’s contention should be upheld on that basis.

48    The primary judge approached the issue as one going to the materiality of an assumed breach of procedural fairness. In assuming the breach, the primary judge concluded that the Tribunal must have considered the information to be “credible, relevant and significant” even though its relevance and significance was left unexplained. The five reasons advanced by the primary judge to explain why the assumed breach could not have materially affected the outcome of the final decision are correct. However, those matters only go to reinforce our conclusion that the information was not “adverse” such that the rules of procedural fairness did not require that it be provided to Mr Ngata for comment at all.

49    On either analysis, the first ground of appeal must fail.

GROUND 2

50    The second ground of appeal concerns the Tribunal’s conclusion that there remained a risk that Mr Ngata may re-offend. It is submitted that the primary judge erred in rejecting submissions that the Tribunal’s reasoning was illogical or otherwise legally unreasonable in two respects.

51    The first concerned the Tribunal’s reliance on the reasoning of the sentencing judge about the impact of Mr Ngata’s mental illness on his culpability for the 2019 offence. The second concerned the Tribunal taking into account the circumstance that Mr Ngata had not voluntarily turned himself into the police in respect of the 2019 offence.

52    The Tribunal’s decision was not affected by legal unreasonableness in either respect.

Principles

53    The power conferred by s 501CA(4) is pre-conditioned by the Minister being satisfied that there was “another reason” to revoke the cancellation decision. The state of satisfaction was to be formed rationally and otherwise within the bounds of legal reasonableness:  Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [26] – [29], [63] and [88]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, Charlesworth J, Flick and Perry JJ agreeing (at [33] – [35]). As the Full Court said in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1, the characterisation of a state of satisfaction as legally unreasonable by reason of illogicality or irrationality is not easily made (at [32]). The Full Court conveniently described the task of characterisation as follows:

34    The task in assessing illogicality is not an exercise in logical dialectic. ‘Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case’:  SZDMS at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds:  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

54    The Tribunal correctly noted a finding of the sentencing judge to the effect that Mr Ngata’s mental illness was not such as to reduce his moral culpability for the 2019 offence. On his application for judicial review, Mr Ngata argued that the Tribunal’s conclusion that there was a real risk of re-offending was based on those remarks. He submitted that the Tribunal’s conclusion was illogical given its finding that the offending was “out of character”. The primary judge did not accept that the “out of character” finding precluded or rendered unreasonable the additional finding there was a real risk of re-offending.

55    On appeal, Mr Ngata submitted that it was difficult to appreciate how the assessment of the sentencing judge concerning the impact of the appellant’s “mental state” on the 2019 offending was relevant to his risk of re-offending. It was submitted that it is as if the “Tribunal essentially suggested that the Appellant does not to any significant degree suffer mental ill-health and did not so suffer at the time of the 2019 offending”. It was submitted that the primary judge did not identify any connection between the remarks of the sentencing judge and the risk that Mr Ngata would re-offend, and that the absence of any such connection meant the Tribunal’s process of reasoning was illogical.

56    These submissions to some extent misstate the effect of the Tribunal’s reasons. Favourably to Mr Ngata, the Tribunal accepted that he had learned additional coping skills through his work with his psychologist. The Tribunal was plainly aware that character referees took the view that the offending was “out of character” and it later adopted those views.

57    The Tribunal did not find that Mr Ngata had not suffered from a mental disorder at all. Its conclusions were more qualified. It reasoned that Mr Ngata’s account of his poor mental state was undermined by his demonstrated capacity to continue to train for and promote his involvement in kickboxing in the relevant period. There was material before the Tribunal to support that conclusion. It is to the same effect as that drawn by the sentencing judge and is neither illogical nor irrational. In addition, the Tribunal described the psychologist’s treatment of Mr Ngata as “brief” in light of the seriousness of his offending and “not suggestive of any significant psychological disorder”. That finding was supported by the material before the Tribunal and was plainly relevant to its assessment of the risk that Mr Ngata might re-offend. In the passages extracted at [33] above, the Tribunal did not accept that Mr Ngata’s explanation for the offending and his rehabilitation efforts were sufficient “relative to the very serious harm re-offending in a similar manner may cause”.

58    There is nothing illogical in that reasoning.

Self-incrimination

59    Next, it was submitted that the Tribunal’s reasoning was illogical or irrational because it took into account that Mr Ngata had not proactively engaged with the police following the 2019 offence but had waited until he was contacted by them. Read in context, the finding must be understood to have undermined Mr Ngata’s submission that he had demonstrated contrition and remorse (including by pleading guilty at the earliest opportunity).

60    It was submitted that the effect of the Tribunal’s reasoning was to visit an adverse consequence on him for asserting a claim of privilege against self-incrimination. It was submitted (and it may readily be accepted) that the right to claim privilege against self-incrimination is a fundamental common law right. It is not “merely a rule of evidence available in judicial proceedings, it is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question”:  Griffin v Pantzer (2004) 137 FCR 209, Allsop J, as he then was (at [44]). It was submitted that the reasoning of the Tribunal derogated from the privilege in the sense that it used the fact that Mr Ngata had claimed the privilege as a factor that weighed against him on the question of whether the cancellation decision should be revoked. It was submitted that it must follow that it was illogical or irrational for the Tribunal to rely on the circumstance that the appellant had not “turned himself in to” the police.

61    The privilege of an individual against self-incrimination is without question a deeply ingrained common law right. It is liable to abrogation only by unmistakeable statutory language:   Sorby v Commonwealth (1983) 152 CLR 281, Gibbs CJ (at 289) and Mason, Wilson and Dawson JJ (at 309); Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, Mason ACJ, Wilson and Dawson JJ (at 340). The privilege may be asserted in response to any compulsive process that may otherwise operate to cause a person to incriminate himself or herself in the commission of an offence. As such, Mr Ngata could not be compelled to attend at a police station and turn himself in for the 2019 offence, any more than he could be compelled to answer questions concerning the offence or to plead guilty to the charge.

62    The privilege may be waived by the individual (and only the individual) including by responding to questioning or pleading guilty to a criminal charge.

63    For the sake of argument it may be assumed that a process of reasoning that interferes with or undermines a fundamental common law right may for that reason be characterised as legally unreasonable. However, we do not consider that the reasoning of the Tribunal was such as to derogate from or undermine the privilege in any way capable of giving rise to jurisdictional error.

64    Following the cancellation decision, Mr Ngata was provided with an invitation under s 501(3A) of the Act to make submissions as to why the cancellation decision should be revoked. In response to that invitation, Mr Ngata submitted (among other things) that he was extremely remorseful of his past offending and so invited the Minister’s delegate (and hence the Tribunal) to find that he did not present a risk to the Australian community. Among other things, he told the Tribunal that he was “immediately ashamed” of his actions.

65    The Tribunal accepted that Mr Ngata was genuinely remorseful, as demonstrated by his mentoring of others whilst in prison and detention, and by making amends to the victims of his offences. The Tribunal also accepted that Mr Ngata had demonstrated remorse by pleading guilty to the 2019 offence at the earliest opportunity in the criminal proceedings themselves.

66    Mr Ngata’s guilty plea was plainly demonstrative of remorse, principally because it involved a choice to waive the privilege. However, the Tribunal did not “derogate” from or otherwise undermine Mr Ngata’s right to claim the privilege by merely identifying an earlier point in time at which he could have made that choice. Read in context, the reasons of the Tribunal disclose that it did nothing more than to identify a limit on a mitigating factor put forward by Mr Ngata. Implicitly, the Tribunal identified that there was more Mr Ngata could have done to demonstrate his asserted feelings of immediate shame. We do not accept the submission that the common law right to claim the privilege was in any way undermined by the Tribunal pointing to that circumstance.

GROUND 3

67    The appellant’s third ground of appeal asserts that the primary judge erred in concluding that the Tribunal had not made “an illogical and material error of fact” in considering the best interests of Mr Ngata’s two oldest sons. It was submitted that the Tribunal had noted that the sons were “for a period placed in the full-time care of Queensland Child Protective Services” whereas the evidence showed that the children had been placed in the appellant’s care through the officials. It was also submitted that the Tribunal made a jurisdictional error in reasoning as to whether those sons would reside with the appellant if the cancellation decision was to be revoked.

68    The errors were said to be material because they reduced the weight that would otherwise have been given to the impact on those children should Mr Ngata be removed from Australia.

69    As to the sons’ expected place of residence, it has not been demonstrated on this appeal that the Tribunal erred in concluding that it was expected that the two oldest sons would continue to live with their mother in Queensland and that Mr Ngata would continue to reside in Canberra. As the primary judge said, the evidence before the Tribunal did not establish that the sons would relocate to reside in Canberra. The ground of appeal cannot be sustained to the extent that it alleges appealable error on the part of the primary judge on that topic.

70    Nor do we consider that the Tribunal proceeded from the mistaken assumption that the two oldest sons were for some time placed in the full-time care of the authorities and that it did not appreciate that the authorities had in fact placed them with Mr Ngata. The Tribunal’s reference to the children being taken in by child protection authorities was made in the context of summarising a statement of Dr Clout to the effect that from a “clinical perspective” it was important that Mr Ngata remain in Australia so that he could remain available as an alternate parent for his two oldest sons. The import of the psychologist’s opinion was that Mr Ngata would and should be an alternative carer should the children be removed from their mother’s care.

71    As the primary judge correctly observed, the Tribunal was under no obligation to refer to every aspect of Mr Ngata’s evidence or case. Considered in context, the reasons of the Tribunal do not suggest that it was ignorant of the status of Mr Ngata as an alternative parent in the event that child protection authorities again intervened.

72    In any event, it is not at all apparent how an error of the kind alleged could have materially affected the outcome of the Tribunal’s assessment as to where the best interests of the two sons lay.

73    The Tribunal did not proceed from an assumption that if the children were at some time in the future to be taken in by child protection authorities they would not then be placed in Mr Ngata’s care. Nor did Mr Ngata advance any case to suggest there was any real likelihood that child protection authorities might again intervene in a way that would result in the children being put into foster care in his absence.

74    The Tribunal’s conclusion that it was “expected” that the children would continue to reside with their mother in Queensland was an unsurprising conclusion having a rational foundation in the evidence. It has not been shown that any error as to events that occurred in the past rendered that expectation erroneous, nor that the Tribunal was bound to conclude that the two eldest sons would reside with Mr Ngata if he was not removed from Australia.

75    It follows that the third ground must fail.

76    The appeal should be dismissed with costs.

Associate:

Dated:    25 August 2022