Federal Court of Australia

MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 141

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant appeals orders of a judge of this Court by which his application for judicial review of a decision of the Administrative Appeals Tribunal on the ground of jurisdictional error was dismissed. The Tribunal’s reasons for its decision (R) have been published: MQGT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3228. The Tribunal affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the appellant’s Class XB Subclass 202 Global Humanitarian visa in the exercise of the power under s 501CA(4) of the Migration Act 1958 (Cth). The Tribunal undertook the review following orders of the Full Court that set aside an earlier decision of the Tribunal and which provided that the matter be remitted for determination according to law: MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285.

2    The appellant does not allege any error in the primary judge’s reasons. Instead, the appellant seeks leave to argue before the Full Court as grounds of appeal new grounds of review that were not argued before the primary judge. We will identify the grounds after setting out some more background.

Background

3    The appellant was born in November 1997 in what is now South Sudan, and is currently 25 years of age. When he was aged one his family fled Sudan and spent eight years in a refugee camp in Uganda. He lost his father in the war when he was very young. The appellant experienced significant trauma before he arrived in Australia with his mother, brother and one sister in April 2007. They were joined in Australia by another sister in 2008, and they settled in Brisbane.

4    The appellant had behavioural problems at school and was expelled twice before he completed his school education up to Year 10 before completing TAFE courses in hospitality and personal training. The appellant’s mother has been sick for many years and was in receipt of support through the National Disability Insurance Scheme at the time of the Tribunal’s decision. As the older male in the family, the appellant felt an obligation to support his mother and family. He tried unsuccessfully to get a job and then turned to drugs and crime. Much of the appellant’s offending appeared to be drug related.

5    On 8 June 2018, the appellant’s visa was cancelled pursuant to s 501(3A) of the Act on the grounds that a delegate of the Minister was satisfied that by reason of his convictions for criminal offences he did not pass the character test because he had a substantial criminal record, and that he was then serving a term of full-time imprisonment. The appellant, in response to an invitation, made representations to the Minister in support of revocation of the decision, and on 19 February 2019 a delegate of the Minister determined not to revoke the original decision. It is this decision that was the subject of review by the Tribunal.

The appellant’s offending

6    Before the Tribunal, the appellant was represented by counsel, who prepared a statement of facts issues and contentions that was filed with the Tribunal. The appellant conceded that he did not pass the character test. The appellant also conceded that he had been “convicted of several inherently serious offences and that his conduct will be viewed by the Tribunal as very serious”. There was some juvenile offending for which no convictions were recorded to which the Tribunal gave no weight. As to other offences, the Tribunal found at R[20] that the appellant had committed a series of offences from 2015 to 2017, basing its findings on the appellant’s statement of facts issues and contentions, the information in which was supported by police and court records –

(a)    On 16 March 2015, the appellant committed the offence “unauthorised dealing with shop goods” involving stealing food as he was hungry. On 3 September 2015, the appellant received no further punishment for this offence.

(b)    On 22 March 2015, the appellant committed the offence “enter premises and commit indictable offence” by entering an unlocked warehouse and smoking cannabis with his peers. On 3 September 2015, the appellant was sentenced to a term of imprisonment of 100 days with a probation period of nine months for this offence.

(c)    On 8 April 2015, the appellant committed the offence “enter dwelling with intent by break”. On 3 September 2015, the appellant was sentenced to a term of imprisonment of six months partially suspended after 100 days for 12 months for this offence.

(d)    On 13 April 2015, the appellant committed the offences “receiving tainted property”, being an iPhone, and “possess tainted property” being mobile phones, money and jewellery. On 3 September 2015, the appellant was sentenced to a term of imprisonment of four months suspended for 12 months for these offences.

(e)    Between 26 May 2015 and 3 September 2015, the appellant was in custody due to the offences dealt with on 3 September 2015.

(f)    On 14 November 2015, the appellant committed two offences of “possess utensils or pipes etc for use” being a straw and a pipe. On 2 August 2016, the appellant was sentenced to a term of imprisonment of four months with a parole release date of 20 August 2016 and probation for two years for these offences.

(g)    On 23 January 2016, the appellant committed two offences of “receiving tainted property”. On 2 August 2016, the appellant was sentenced to a term of imprisonment of 12 months with a parole release date of 20 August 2016 for these offences.

(h)    On 30 January 2016, the appellant committed the offence “possess dangerous drugs” and “possession of a knife in a public place or a school”. On 2 August 2016, the appellant was sentenced to terms of imprisonment of 12 months and four months respectively with a parole release date of 20 August 2016 for these offences.

(i)    On 12 February 2016, the appellant committed the offence “common assault”. On 6 April 2018, the appellant was sentenced to two years’ probation for this offence.

(j)    On 15 February 2016, the appellant committed the offence “failure to appear in accordance with undertaking”. On 18 February 2016, the appellant was fined $200 for this offence.

(k)    On 17 February 2016, the appellant committed the offence “receiving tainted property”. On 2 August 2016, the appellant was sentenced to a term of imprisonment of 12 months with a parole release date of 20 August 2016 for this offence.

(l)    On 22 February 2016, 26 February 2016, 2 March 2016, 11 March 2016 and 20 April 2016, the appellant committed five offences of “breach of bail condition”. On 2 August 2016, the appellant was sentenced to a term of imprisonment of four months with a parole release date of 20 August 2016 and probation for two years for these offences.

(m)    Between 21 April 2016 and 20 August 2016, the appellant was in custody due to the offences dealt with on 2 August 2016.

(n)    On 9 January 2017, the appellant committed the offence “possess utensils or pipes etc that had been used”. On 6 April 2018, the appellant received no further punishment for this offence.

(o)    On 23 January 2017, 31 January 2017, 13 March 2017 and 15 March 2017, the appellant committed two offences of “failure to appear in accordance with undertaking” and two offences of “breach of bail condition”. On 6 April 2018, the appellant received no further punishment for this offence.

(p)    On 9 March 2017, the appellant committed the offence “enter dwelling with intent by break at night in company, damage or threaten or attempt to damage property” and two offences of “robbery with actual violence armed/in company/wounded/used personal violence”. On 6 April 2018, the appellant was sentenced to a term of imprisonment of four years, partially suspended after serving 14 months for these offences.

(q)    On 20 April 2017, the appellant committed the offence “commit public nuisance”. On 6 April 2018, the appellant received no further punishment for this offence.

7    Within the above summary are two significant occasions on which the appellant was sentenced by a court. The first was on 2 August 2016 at the Beenleigh Magistrates Court. The sentencing remarks of the Magistrate were before the Tribunal. Of note to the Tribunal at R[22] was that there were 12 matters before the Court on that occasion including breaches of suspended sentences from the previous year, and that the Magistrate considered that the most serious offences were possessing dangerous drugs and receiving tainted property for which the appellant was sentenced to 12 months’ imprisonment with a nine month parole period commencing on 20 August 2016.

8    The second significant occasion was on 6 April 2018 before the District Court at Southport. A transcript of the sentencing judge’s remarks was before the Tribunal. At R[23], the Tribunal set out the following extract from the sentencing judge’s remarks –

Your prior criminal history, for somebody who is so young, is concerning. You have convictions for enter premises, receiving and possession of tainted property, breach of bail and drug offences. You have even previously been imprisoned and you have breached a suspended sentence. On the 2nd of August 2016, you were sentenced to 12 months’ imprisonment and probation for two years. There was a parole release date set at the 20th of August 2016. You had served 104 days in pre-sentence custody. The full time of that sentence was the 20th of April 2017. Now, you breached your parole and the probation by the commission of these offences and you have been remanded in custody since the 20th of April last year. I intend to declare that period as time served under the sentence.

Turning to the facts of this case, they are extremely serious. You and three others broke into the complainant [redacted] home to steal money and drugs. You all entered her bedroom and searched it. When another complainant, [redacted], who was renting a room through Airbnb, came out of his room to see what was happening, one of your co-offenders pointed a knife at him and two of the males forced him back into his room. The four of you then went into his room. You personally stole his laptop. There was $1000 and other property taken from him. Meanwhile, [redacted] managed to call the police. However, you then went back into her room and tried to steal her wallet. Another co-offender held a knife to her throat and asked where the wallet was. Fortunately, she managed to get you out of her room and locked her door. You all eventually left with an amount of stolen goods, including the television set, the two complainants’ mobile phones and an Xbox. Now, due to a link between [redacted] daughter and a co-offender, you were eventually identified by a photoboard by the complainant [redacted]. The summary offences include failing to appear and other bail offences, a public nuisance and a common assault. During the common assault, you slapped a female across the face.

9    We note from these remarks that it appears that the appellant had been in custody since 20 April 2017, and has remained in custody, in prison, and then in immigration detention since that time.

10    The Tribunal referred at R[24] to reports of Queensland Corrective Services from June 2018 that referred to eight incidents since the appellant’s incarceration commenced in April 2017. Four incidents were reported to have occurred in 2018 when the appellant became verbally non-compliant and abusive towards staff. On two occasions the appellant made direct threats to harm staff. On one occasion the appellant attempted to bite an officer. And in 2017 the appellant was involved in a fight with another prisoner. The Tribunal stated that in evidence before the Tribunal the appellant said that he took full responsibility for these incidents. The Tribunal referred to a report from a clinical psychologist, Dr McCue which referred to the appellant’s awareness that he had problems with people in positions of authority, but offered the opinion that the appellant appeared to lack insight into his need to address his thoughts and feelings therapeutically to reduce his anger.

11    The Tribunal concluded its summary of the appellant’s offending at R[25], which we set out in full, because it was the subject of the appellant’s submissions on this appeal –

The applicant’s offending includes crimes of a violent nature against women which is viewed very seriously by the Australian Government and community. The crimes from 2015 to 2017 were frequent and showed a trend of increasing seriousness, culminating in the two counts of armed robbery with personal violence, and the common assault when he slapped a female across the face. The cumulative effect of this repeated offending is very significant. The seriousness of the offending and his lack of respect for persons in authority are very significant factors in terms of whether I am satisfied that there is “another reason” to set aside the non-revocation decision.

(Footnotes omitted.)

The appellant’s representations

12    The appellant’s representations that were maintained before the Tribunal addressed the following topics, which relate to matters relevant to the revocation of a mandatory cancellation of a visa that were set out in the Minister’s Direction No 90 made under s 499 of the Act –

(a)    the appellant’s fears of serious harm and other impediments should he be removed to South Sudan;

(b)    allied to the above, Australia’s international non-refoulement obligations;

(c)    the protection of the Australian community, which involved addressing the nature of harm should the appellant re-offend, and the likelihood of him re-offending;

(d)    the best interests of the children of the appellant’s sister whom he had seen and to whom he had spoken on video calls while in custody;

(e)    the expectations of the Australian community; and

(f)    the appellant’s links to the Australian community.

The Tribunal’s consideration

13    The Tribunal considered the appellant’s representations broadly by reference to the framework in Direction No 90. We will address first those matters which most favoured revocation before turning to the factors that in the Tribunal’s view weighed against revocation.

The appellant’s fears of harm if removed to South Sudan

14    The Tribunal addressed the appellant’s representations concerning his fear of harm, summarising the representations at R[54] –

The applicant made representations concerning risk of harm in South Sudan. He said he was scared of being removed to South Sudan where he might get killed because of the war. He would be homeless and have no family or social support because he does not know anyone in South Sudan. As a returnee from the west with perceived wealth, the applicant claimed he would be a target.

15    The Tribunal considered the facts underpinning these representations separately from the question whether they gave rise to non-refoulement obligations. At R[57], the Tribunal referred to a DFAT country information report which stated that the situation in South Sudan remained dire, and that –

There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is of the ethnic group of Acholi. He may be targeted for his perceived wealth as a western returnee. He may be conscripted as a soldier.

16    At R[58], the Tribunal accepted the appellant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan, stating that it was not in dispute that the appellant left South Sudan as a child with his family due to the war, and finding that the appellant would have no family support or other network if removed to South Sudan. The Tribunal stated that this was a factor that weighed heavily in favour of revocation of the cancellation of the visa.

Non-refoulement obligations

17    The Tribunal addressed and decided to defer the consideration of the assessment of non-refoulement obligations, citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [30]. The Tribunal’s decision to defer that consideration was based upon the fact that it was open to the appellant to apply for a protection visa, and where the Tribunal held that [9.1(6)] of Direction 90 permitted that course: R[51]-[53]. Before the primary judge, the appellant submitted that in determining to defer consideration of non-refoulement issues the Tribunal had misconstrued [9.1(6)]. This claim was rejected by the primary judge, and is not in issue on this appeal.

Consequences of cancellation

18    The Tribunal addressed at R[65] the appellant’s contention that if the cancellation decision was not revoked, he would either be removed to South Sudan, or detained indefinitely. The Tribunal referred again to the fact that it was open to the appellant to apply for a protection visa. However, in relation to whether there was any prospect that the appellant might be re-settled or whether the Minister might exercise a personal discretion to grant the appellant a visa, the Tribunal stated that there was no evidence that these courses would be considered. The Tribunal accepted that in these circumstances ongoing detention would affect the mental health of the appellant, would have adverse consequences, and was a factor that weighed in favour of revoking the cancellation decision.

Extent of impediments if removed

19    At R[71], the Tribunal stated that the appellant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arose primarily because the appellant left Sudan when he was a young child and had no network of family or friends to support him there. The Tribunal also referred to the matters it took into account in evaluating the risk of harm to the appellant if removed. The Tribunal held that the impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the appellant because of his unfamiliarity with the country and his lack of family or other support. The Tribunal concluded that there would be substantial cultural and language barriers which would create significant impediments to the appellant establishing himself and maintaining a basic living standard in South Sudan, and that the impediments weighed heavily in favour of revocation of the cancellation decision.

The best interests of minor children

20    At R[36]-[37], the Tribunal addressed the interests of minor children, being the appellant’s three nieces. Although the appellant had not seen them in person, the Tribunal accepted that it would be in the best interests of those children if the appellant was released, and that they would benefit from having an uncle in their lives. The Tribunal concluded that this was a factor that weighed moderately in favour of revocation of the cancellation decision.

Links to the Australian community

21    The Tribunal considered that the appellant’s links to the Australian community weighed moderately in favour of revocation of the cancellation decision. The Tribunal stated that the appellant had significant links to the Australian community, involving his family, his schooling, tertiary education, sport, and attendance at church. In relation to his family, the Tribunal found that his mother, two sisters, and a brother would be devastated if the appellant was not to be released from detention.

Protection of the Australian community

22    The Tribunal considered the appellant’s risk to the Australian community in two steps, as contemplated by [8.1.2(2)] of Direction 90, and citing the guidance of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424. First, the Tribunal concluded at R[28] that if the appellant was to engage in further similar criminal offending, then the nature of the harm would be very serious because the offending was repeated, and involved drugs, violence, dishonesty, and property damage. There is nothing that would appear to be controversial about this conclusion, because the appellant conceded in the statement of facts issues and contentions before the Tribunal that the nature of the harm that would be caused should the appellant reoffend in a violent manner would be serious.

23    In relation to the likelihood of re-offending, the Tribunal addressed the appellant’s representations that there was a low risk of re-offending because he had learned from past mistakes, and did not wish to risk re-offending. On this issue, the appellant gave evidence before the Tribunal and tendered the report of Dr McCue to which we referred earlier. Dr McCue also gave oral evidence before the Tribunal. At R[32] the Tribunal referred to the evidence of Dr McCue that the appellant had a low risk of re-offending if his risk factors were removed. Those risk factors were a relapse into the use of illicit drugs, and association with an anti-social peer group. Dr McCue stated that violence could be a feature of future offending, but would likely be limited to situations in which the appellant was attempting to obtain money or property, and in which case the appellant would most likely be complicit in violence perpetrated by co-offenders.

24    The Tribunal concluded at R[34] that the protection of the Australian community was a factor that weighed heavily against revocation of the cancellation of the appellant’s visa. The reasons for this conclusion were stated at R[33] as follows –

The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. The applicant has committed serious crimes and has attempted to minimise his responsibility for some of those crimes. If released, he would benefit from the undoubted support he would receive from his family, in particular his younger sister. Looking after his mother would give him some purpose. He expects to find employment through his brother. He has support from an Australian friend who came to visit him in detention. This would create a stable environment which would reduce his chances of re-offending. However, his periods in the community as an adult have been marred by drugs and crime. Since abstaining from drugs and being removed from his antisocial peers he has still behaved poorly whilst in prison and detention, but I take into account that his last violent incident was in about September 2018. I accept Dr McCue’s opinion that in the absence of his risk factors the likelihood of re-offending is low, but that likelihood will elevate to what I would consider to be a moderate and unacceptable level if those risk factors return. The applicant has not been tested in the community and there remains a risk that he will relapse and re-engage with his antisocial peers and offend again if he is released.

(Footnote omitted.)

The expectations of the Australian community

25    The Tribunal concluded that the expectations of the Australian community was a factor that weighed heavily against revoking the cancellation decision. While noting that the appellant had a traumatic childhood, that he had arrived in Australia as a child, and that his offending was related to drugs and anti-social peers, the Tribunal stated that the appellant’s most recent offending was extremely serious. This characterisation was made with reference to the remarks of the sentencing judge to which we referred at [8] above, and accorded with a concession that the appellant made in the statement of facts issues and contentions that was before the Tribunal. The Tribunal stated at R[42] that it considered the appellant’s offending to be so serious that even a low to moderate risk of re-offending was unacceptable, and that the character concerns relating to the appellant and his past criminal behaviour meant that the expectations of the Australian community was a factor that weighed in favour of non-revocation.

The Tribunal’s conclusions

26    The Tribunal concluded at R[85] that it was not satisfied that there was another reason why the cancellation decision should be revoked. Relevant to the issues argued on appeal, the Tribunal stated at R[81] –

The applicant has shown a complete disregard for authority for much of his adult life in the community and when in prison. Despite receiving a suspended sentence for numerous serious offences in September 2015, the applicant continued to offend resulting in another series of convictions in August 2016 followed by convictions for the most serious offences in April 2018. This suggests that the applicant does not learn from his mistakes even when given an opportunity. There remains an unacceptable risk of further offending of the same nature and the Australian community would expect him to have his visa cancelled. The applicant is in relatively good mental and physical health and he is not married and has no children of his own. I have taken into account the interests of his sister’s children and that his mother, two sisters and brother will all be adversely impacted by his removal. These unfortunate consequences arise from the applicant’s own conduct.

27    The Tribunal at R[83] accepted the appellant’s contention that indefinite detention was the most likely consequence of a non-revocation decision, noting that the appellant still had an opportunity to apply for a protection visa. The Tribunal stated that indefinite detention was a very serious consequence, but that the protection and expectations of the Australian community prevailed in its deliberations.

The application in the original jurisdiction of the Court

28    As we have mentioned, the primary judge dismissed the appellant’s application for relief alleging jurisdictional error by the Tribunal. There is no challenge to the correctness of the primary judge’s reasoning, and therefore it is unnecessary to recount his Honour’s reasons.

The appeal to this Court

29    The appellant seeks leave of the Court to advance the following grounds of appeal, which constitute new grounds that were not argued below. The grounds in the notice of appeal that was filed by the appellant were abandoned by counsel. The Minister consented to the appellant filing proposed amended grounds and to the Court listing with the appeal the application for leave to rely on the new arguments on the basis that the parties should address full argument. The new grounds on which the appellant sought leave to rely comprise a single numbered ground with sub-grounds as follows –

1.    The Tribunal fell into jurisdictional error by reaching an unreasonable or illogical conclusion that the protection and expectations of the Australian community outweighed the countervailing considerations which favoured a decision to revoke the cancellation decision, by:

a.    concluding that there was an unacceptable risk of further offending, and that the Australian community would expect the Applicant’s visa to be cancelled, at [81], in circumstances where:

(i)    the Tribunal had accepted that the likelihood of re-offending was low, at [33], and

(ii)    the evidence otherwise demonstrated the Applicant had good prospects for rehabilitation, with home and familial support upon release from incarceration, and a willingness to obtain employment, and

b.    wrongly assessing the offences as showing a trend of frequency and increasing seriousness, at [25], in circumstances where, between 20 August 2016 and 9 January 2017, the Applicant committed no offence, and, aside from an offence on 12 February 2016, and offences more than 12 months later (on 9 March 2017), they did not involve violence and were otherwise of a similar nature thereby not revealing any increase in frequency nor seriousness.

30    The application to rely on these new grounds was put on five bases: (1) on the hypothesis that there was jurisdictional error in the Tribunal’s decision, there were serious consequences to the appellant should he remain in detention for an uncertain period or be removed to South Sudan; (2) there was no prejudice to the Minister if leave were granted to argue the new grounds; (3) the new grounds have merit; (4) the failure to argue the new grounds before the primary judge should not be visited upon the appellant; and (5) for these reasons it was expedient and in the interests of justice for the Court to entertain the new grounds.

31    It would undermine the division between this Court’s original and appellate jurisdictions if parties could freely re-argue cases on appeal as if the appeal was a re-hearing de novo. To permit that to occur without restriction would have a tendency to undermine the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), which is to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. The Court has a practice of requiring that leave be sought before a claim not brought below is argued on appeal. The approach of the Court to such applications is not inflexible. The touchstone is whether the granting of leave to raise a new point “is expedient in the interests of justice”: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J), cited in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). There are no firm rules governing when the Court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case. In assessing individual cases, the Court commonly looks at the question whether there was any explanation for the point not being raised at first instance, whether there is prejudice to any party, and whether there is any merit in the new point, while at all times having regard to the administration of justice generally. There will be cases where, whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is affected by jurisdictional error should not remain standing.

32    In this appeal, the potential prejudice to the appellant, who remains in detention, is significant, and the Minister did not claim that there was any specific prejudice such that the new arguments could not be addressed fairly on appeal. There was no evidence as to why the points now sought to be argued were not raised below. These features therefore direct attention to whether there is any merit in the appellant’s new grounds.

The appellant’s submissions

Ground 1(b)

33    Counsel for the appellant addressed Ground 1(b) first, submitting that the Tribunal had wrongly assessed that the appellant’s offences were frequent in nature and showed a trend of increasing seriousness. It was submitted that the Tribunal wrongly assessed that the offending culminated in the armed robbery offences and common assault, and thereby incorrectly concluded that there was a “cumulative effect” of the offending that was very significant. This, counsel submitted, led the Tribunal to reach the unreasonable or illogical conclusion referred to in the proposed grounds of appeal.

34    Counsel submitted that, on the contrary –

(a)    there was the passage of more than 12 months between the appellant’s common assault offence in February 2016, and the armed robbery offences in March 2017 (and therefore, not a ‘culmination’ in both);

(b)    while the appellant was in custody between April and August 2016, after his release in 2016 he committed no further offences for more than five months;

(c)    setting aside the common assault and armed robbery offences (in relation to which there was a gap of more than 12 months), the offences did not otherwise involve violence; and

(d)    the balance of the offences do not reveal any increase in frequency, nor seriousness, and do not involve a “victim”, being, in essence, offences for breaching bail conditions, failing to appear and possession of a drug implement for personal use.

35    It was submitted that in that vein, the appellant’s offences were more properly described as occurring only in limited “clusters” with lengthy periods of no offending. Counsel for the appellant submitted that the correct characterisation was important in circumstances where the Tribunal concluded that the crimes between 2015 and 2017 were “frequent and showed an increasing trend of seriousness” and then reasoned, at R[25], that the seriousness was a significant factor in terms of whether there was “another reason” to set aside the non-revocation decision. It was further submitted that, correctly characterised, the Tribunal should not have concluded, as it did at R[80], that the protection and expectations of the Australian community outweighed all other considerations that were in favour of revocation of the cancellation of the visa. It was submitted that where the offences occur as “clusters”, they are interrelated or “flow on”, such that a series of bail breaches or failures to appear arise after an earlier, substantive offence. Counsel for the appellant submitted that the bail breaches, or failure to appear were not new substantive or different offences against victims, and in all the circumstances, they did not reflect any nature or characteristic of an increased frequency or trend in seriousness.

Ground 1(a)

36    Counsel for the appellant submitted that the Tribunal reached an illogical and unreasonable conclusion that the appellant’s risk of re-offending was unacceptable, in circumstances where it had already concluded that the risk was low, and in circumstances where, it was submitted –

(a)    the appellant had had no proper opportunity to demonstrate rehabilitation or a capacity to contribute meaningfully to the Australian community;

(b)    the sentencing judge in April 2018 had relied on a “very refreshing and thorough” report prepared by a social worker, which set out in great detail her opinion as to the reasons for the appellant’s offending, and the positive aspects for the appellant’s future, including his intention to resume living with his mother, who provided visitation and support while he was serving in prison, and was willing to support him but who would not put up with further offending;

(c)    the sentencing judge had also noted that the social worker had identified that the appellant would clearly benefit from drug and alcohol counselling and an anger management program and further counselling by a qualified practitioner in relation to his bad and difficult childhood; and

(d)    the sentencing judge had clearly assessed that the appellant was a significant prospect for rehabilitation and sentenced accordingly.

37    It was submitted that the appellant had been a young offender with a traumatic and difficult childhood, and had positive rehabilitation prospects that had been a relevant factor in determining an appropriate sentence. It was submitted that the appellant’s rehabilitation prospects were not properly accounted for by the Tribunal when it concluded that there remained an unacceptable risk of further offending of the same nature, and that the Australian community would expect him to have his visa cancelled.

38    As to the adverse incidents reported about some of the appellant’s conduct while in custody, counsel for the appellant submitted that the last alleged violent incident in custody was in September 2018, now some years ago. It was further submitted that the appellant had abstained from drugs and had been removed from his antisocial peers, being the two risk factors considered to increase his risk of offending in the community.

39    As to the expectations of the Australian community, counsel for the appellant submitted that the Tribunal failed properly to account for the tolerance that would be afforded by the community in the circumstances of the appellant and his family, who had fled war-torn Sudan, and where the appellant was a young child when he arrived in Australia and spent his formative years here. It was submitted that the decision not to revoke the cancellation of the appellant’s visa had the consequence of tearing his family apart. It was submitted that it was reasonable to accept that Australian community expectations are such that tolerance for the appellant’s offending was higher, and that it is reasonable to find that there would also be an expectation of permanency, in that Australia is the appellant’s home notwithstanding the serious mistakes and misjudgements he made as an adolescent and young man.

40    Overall, it was submitted that it was illogical for the Tribunal to conclude that the protection of the Australian community and an unacceptable risk outweighed the other considerations that favoured revocation of the cancellation decision, including the several factors which weighed heavily in favour of revocation.

Consideration

Applicable principles

41    Section 501CA(4) of the Act confers a “wide discretionary power” on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is another reason why that decision should be revoked: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22] (Kiefel CJ, Keane, Gordon and Steward JJ). The duty of the Tribunal in this case was “to do over again” the delegate’s decision as to whether the mandatory cancellation of the appellant’s visa should be revoked. The Tribunal had to decide that question for itself, having regard, among other things, to the representations made by the appellant and the directions made by the Minister under s 499 of the Act. Determining whether it should be satisfied that another reason exists “might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [14] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

42    There is an implied condition on the discharge of the Tribunal’s duty to review that the review must be undertaken reasonably. The condition of reasonableness is concerned with both the outcome and the process of reasoning: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ). There are a number of dimensions to the obligation of the Tribunal to discharge its duty to review reasonably. One dimension is that the Tribunal’s decision must not be the product of a process of reasoning that is illogical or irrational such as to amount to an abuse of the statutory function to review. A decision of this character has been described as being “one at which no rational or logical decision-maker could arrive on the same evidence”: SZMDS at [130]. Another description is whether the decision is “irrational, illogical [or] not based on findings or inferences supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38] (Gummow and Hayne JJ). However, “[n]ot every lapse of logic will give rise to jurisdictional error”, and “a court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS at [130]. To amount to jurisdictional error, a claimed error in the process of reasoning, such as the absence of evidence or other material, or lack of logical grounds, must be such as to support a finding by a court 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”, and such that the decision can be characterised as “unjust, arbitrary or capricious”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 (Djokovic) at [34]-[35] (Allsop CJ, Besanko and O’Callaghan JJ); Masi-Haini v Minister for Home Affairs [2023] FCAFC 126 (Masi-Haini) at [49]-[51] (Markovic, Meagher and Kennett JJ). See also the references to “clearly unjust”, or “arbitrary”, or “capricious” in SZDMS at [130].

43    There is a corresponding implication that the required threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J). The high threshold of unreasonableness preserves the delineation between the executive function of the Tribunal in determining whether to exercise the wide discretion in s 501CA(4), and the limited role of the Court, which is to review for jurisdictional error. The Court is concerned with the legality of the decision, and whether there has been an abuse of power by the decision-maker. The Court is not concerned with the merits of the decision, and is not concerned with substituting its own view as to what was a reasonable outcome. In relation to outcome, the high threshold has been described by reference to a decision which is “so unreasonable that no reasonable repository of the power could have taken the decision or the action”: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J). In relation to the process of decision-making, the high threshold has been referred to by asking whether it was open to a Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it: SZMDS at [133]. The high threshold to establish legal unreasonableness is likely to be challenging to meet when what is put in issue concerns questions of characterisation, prediction, and weight, which are quintessentially questions for the Tribunal’s evaluation in arriving at a decision whether to exercise the wide discretion under s 501CA(4). An example of such a question is the evaluation of the seriousness of the appellant’s offending. It is not for the Court to substitute its view, or to undertake its own analysis. And in any event, the precise characterisation of past offending may not even be relevant to an evaluation of the Tribunal’s assessment of the risk to the Australian community should re-offending occur: see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [77] (Allsop CJ, Griffiths and Wigney JJ).

Consideration – Ground 1(b)

44    By force of s 499 of the Act, Direction No 90, at [8.1.2], required the Tribunal to have regard to the risk to the Australian community should the appellant re-offend as a primary consideration in assessing the risk that may be posed by the appellant –

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

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the noncitizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

45    Ground 1(b) is directed principally at the Tribunal’s reasons at R[25], which we have set out at [11] above. By this ground, the appellant challenges: (1) the Tribunal’s characterisation of the appellant’s offending from 2015 to 2017 as frequent; (2) the Tribunal’s statement that the crimes showed a trend of increasing seriousness; (3) that the offending “culminated” in the armed robbery and common assault offences; and (4) that there was a “cumulative effect” of the repeated offending that was very serious. These are claims of identifiable errors: cf, Djokovic at [31].

46    It is not for this Court to review the Tribunal’s characterisation of the appellant’s offending as if this were a rehearing. Therefore, it is not for this Court to consider whether the appellant’s offending might more accurately have occurred in “clusters”, as counsel for the appellant submitted. As the principles that we earlier set out establish, the burden on the appellant is to demonstrate that the Tribunal’s characterisation and evaluation of the appellant’s past offending was not open to it, leading to a conclusion that on the available material it was not possible for the Tribunal logically or rationally to refuse to revoke the cancellation decision.

47    We do not accept that it was not open to the Tribunal to reason as it did. The Tribunal set out the history of offending, as we have done at [6] above. The offending may fairly be characterised as “frequent”. In fact, at [33] of the appellant’s statement of facts issues and contentions before the Tribunal it was accepted that the appellant “has frequently committed offences”. If that is how the appellant’s own counsel characterised the offending, it is difficult to see how it was not open to the Tribunal to do likewise.

48    It was also open to the Tribunal to assess the crimes as increasing in their level of seriousness. The sentencing judge in the remarks of 6 April 2018 (see [8] above) referred to the circumstances of the offending for which the appellant was sentenced on that occasion as “extremely serious”. It was open to the Tribunal to consider that breaking into a home for the purpose of stealing money and drugs, where a co-offender threatened the occupants with the use of a knife, was more serious than the offending that had occurred until that time. It was also open to the Tribunal to think that the appellant’s assault of a female by slapping her across the face was more serious than the property and drug-possession offences that the appellant had committed.

49    The Tribunal’s reference to the appellant’s offending having “culminated” in the armed robbery and common assault offences does not evidence any illogical or irrational reasoning, and the remark was one that was well open to the Tribunal. While it was the case that the assault offence had taken place on 12 February 2016, and the house-breaking and robbery offences took place more than 12 months later on 9 March 2017, we do not consider that there was irrational reasoning in treating these two sets of offences as more serious than the others, and therefore the culmination of the appellant’s offending. The verb “culminate” is defined by the Oxford English Dictionary in its third meaning as, “[t]o reach its acme, or highest development”. It was well open to the Tribunal to consider that the armed robbery and assault offences were a culmination in this sense, particularly in a context where they were among the most recent offences for which the appellant had been sentenced. As for the reference to the “cumulative effect” of the repeated offending that was very serious, it was open to the Tribunal to look at the accumulation of the detail of the appellant’s offending in the way it did.

50    The Tribunal’s assessment and characterisation of the appellant’s offending cannot be held to be illogical, or irrational, or amounting to assessments that no reasonable tribunal could reach. It follows that the appellant’s submission that the Tribunal’s characterisation of the appellant’s offending led to an erroneous evaluation of the need to protect the Australian community, or an erroneous evaluation of the expectations of the Australian community, or an erroneous weighing of considerations must be rejected. Moreover, even if the Tribunal’s characterisation of the appellant’s offending was in error to the extent that the characterisation could be said to be illogical or irrational, the appellant has not shown that the Tribunal’s ultimate conclusion could not be reached logically or rationally on the available material: see Djokovic at [35]; Masi-Haini at [50]-[51].

Consideration – Ground 1(a)

51    Ground 1(a) is directed to the Tribunal’s conclusion at R[81] that there remained an unacceptable risk of further offending by the appellant and that the Australian community would expect him to have his visa cancelled: see [26] above. One of the foundations for this ground is a claim that the Tribunal had accepted that the likelihood of re-offending was low, citing R[33]. This is not an accurate account of the Tribunal’s findings. We set out R[33] at [24] above. The Tribunal accepted the opinion of Dr McCue that “in the absence of risk factors” the appellant’s likelihood of re-offending was low. Importantly, the Tribunal also stated that the likelihood of re-offending “will elevate to what I would consider to be a moderate and unacceptable level if those risk factors return”. The risk factors to which the Tribunal referred were involvement with drugs, and antisocial peers. The Tribunal stated that the appellant had not been tested in the community and there remained a risk that he would relapse and re-engage with his antisocial peers and offend again if he were released.

52    There were four main threads to the Tribunal’s reasoning leading to its conclusion that there remained an unacceptable risk of the appellant re-offending. The first was that the Tribunal viewed the nature of the harm that would be caused if the appellant were to engage in further similar criminal offending, which was repeated, and involved drugs, violence, dishonesty and property damage: R[28]. Second, the appellant’s periods in the community were marred by drugs: R[33]. Third, there remained a risk that the appellant would relapse and re-engage with his anti-social peers and offend again if he were released: R[33]. And fourth, the appellant’s history of continuing to offend after receiving suspended sentences suggested that the appellant did not learn from his mistakes when given the opportunity: R[81].

53    The appellant’s submissions pointed to a number of features of the material that arguably militate against these conclusions: see [36]-[38] above. However, these were all matters for the Tribunal to consider. To the extent that the submissions were based upon the sentencing remarks of 6 April 2018, the Tribunal had those remarks, and also the report and oral evidence of Dr McCue, to which the Tribunal referred. The appellant’s submissions amounted to no more than an invitation to review the merits of the Tribunal’s decision that the appellant represented an unacceptable risk, and do not persuade us that there was any illogical or irrational reasoning. It follows that the appellant has not demonstrated that on the available material the Tribunal could not logically and rationally reach the conclusion that the appellant’s risk of re-offending was unacceptable.

54    In relation to the appellant’s submissions as to the content of the expectations of the Australian community, those expectations were the subject of [8.4] of Direction 90, which provided, inter alia –

8.4    Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

...

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

55    The Tribunal referred to these provisions at R[39]-[41]. It was not for the Tribunal to make its own assessment of the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [67] (Charlesworth J) and [103] (Stewart J).

56    Finally, it follows from all the above that the weighing process in which the Tribunal engaged in arriving at its decision not to revoke the cancellation of the appellant’s visa was one that was open to it for the reasons that the Tribunal gave, and the appellant’s overarching challenge to the outcome of the Tribunal’s review on the ground that it was illogical or irrational must fail.

Conclusion

57    For the above reasons, we conclude that there is insufficient merit in the appellant’s new arguments to warrant a grant of leave to raise them. Because they were the only grounds that were maintained, the appeal will be dismissed with costs.

Pro Bono Counsel

58    Ms Hayley Cormann of the Western Australian Bar accepted a referral from the Court to give pro bono assistance to the appellant. The work that Ms Cormann undertook included formulating new grounds of appeal, the preparation of written submissions and appearance before the Court. The Court acknowledges the work of pro bono counsel, which was undertaken generously and in the finest traditions of the Australian Bars.

Associate:

Dated:    22 August 2023