FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    Anthony Ikenna Obele is a Nigerian citizen. Earlier this year he was released on parole after serving six and a half years of a ten year prison sentence for importing and possessing not less than a trafficable quantity of cocaine. On 17 November 2009, before his release, a delegate of the applicant (“the Minister”) notified him that he failed the character test imposed by s 501 of the Migration Act 1958 (Cth) (“the Act”) and exercised the discretion given to him by s 501(2) of the Act to cancel his visa. He then exercised his right pursuant to s 500 of the Act to have the delegate’s decision reviewed by the Administrative Appeals Tribunal (“the Tribunal”).

2    Mr Obele appeared before the Tribunal without legal representation. His application was nonetheless successful. The Tribunal set the decision aside and substituted the decision that his visa not be cancelled.

3    The Tribunal’s decision on review under s 500 is a privative clause decision. See s 474(2) of the Act.

4    The ordinary avenue of challenge to the Tribunal’s decisions – an appeal to this Court on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – has been foreclosed for privative clause decisions made under the Act. See s 483 of the Act.

5    The Court’s jurisdiction with respect to this decision arises instead under s 476A of the Act, which confers original jurisdiction in relation to it in subs (1)(b), and goes on to define that jurisdiction in subs (2) in this way:

Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

6    The High Court’s jurisdiction under s 75(v) to grant the remedy of mandamus and the ancillary remedy of certiorari (the relief sought by the Minister in this Court) with respect to decisions under the Act covered by the privative clause in s 474 is confined to decisions affected by jurisdictional error. See Plaintiff S157 v Commonwealth (2003) 211 CLR 476, [2003] HCA 2.

7    I am not satisfied that the Tribunal has made a jurisdictional error.

The application

8    The Minister’s application raises four grounds.

9    The first is that the Tribunal misconstrued Ministerial Direction Number 41 – Visa Refusal and Cancellation Under Section 501 (“the Direction”), which was made under s 499(1) of the Act and was binding on the Tribunal under s 499(2A). In particular, the Minister complains that the Tribunal misconstrued the requirement in paragraph 5.2(2)(a) to have regard to “the nature of any harm that the person concerned may cause to the Australian community”, “as developed in” paragraphs 10.1(2)(a) and (b).

10    The second is that the Tribunal failed to make findings it was required to make under paragraph 5.2(2)(a) of the Direction. This is put as an alternative to the first ground and relies on the same grievance.

11    The third ground (ground 2A in the application, which the Minister was granted leave to add at the hearing in this Court) is that the Tribunal failed to have regard to a relevant consideration it was obliged to consider, namely “the integers” referred to in paragraphs 5.2 and 10.1(2) of the Direction.

12    Evidently, these first three grounds are no more than alternative ways of articulating the same basic grievance, which is that the Tribunal misunderstood or did not have proper regard to the terms of paragraphs 5.2(2)(a) and 10.1(2) of the Direction.

13    The fourth ground is that the Tribunal failed to observe the requirement not to impugn either Mr Obele’s criminal convictions under s 233B(1) of the Customs Act 1901 (Cth) or the essential facts on which they were based.

14    Before I come to consider the grounds it is necessary to say something about the statutory scheme.

The statutory scheme

15    The Minister’s delegate cancelled Mr Obele’s visa under s 501(2) of the Act, which provides that:

The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

16    Subsection (6) provides that, for the purposes of s 501, a person does not pass the character test if, amongst other things, the person has a substantial criminal record. Subsection (7) defines “a substantial criminal record” so as to include the circumstance that the person has been sentenced to a term of imprisonment of 12 months or more.

17    In the present case, therefore, there is no doubt that Mr Obele did not pass the character test. That means that the discretion of the Minister’s delegate to cancel his visa was triggered. The exercise of the discretion – whether by the delegate or the Tribunal on review – was guided by the Direction, which came into force on 15 June 2009, replacing the previous direction, Direction No. 21. Part 1 cl 5 of the Direction is headed “Preamble” and contains two parts – cl 5.1, setting out the objectives, which, in the words of cl 5.2, are “facilitated” by the Direction, and cl 5.2 itself, which is headed “General Guidance”.

18    Paragraph 5.2(2), upon which the Minister places a great deal of emphasis, states:

In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:

(a)    the nature of any harm that the person concerned may cause to the Australian community; and

(b)    the risk of that harm occurring.

19    Part 2 is headed “Directions”. Part A of Part 2 provides guidance on the application of the character test and was not relevant to the decision in Mr Obele’s case as, by force of the Act, he had automatically failed the character test.

20    Part B provides guidance on the exercise of the s 501 discretion once triggered.

21    Paragraph 9 of Part B is entitled “Taking the relevant considerations in account” and provides:

(1)    Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.

(2)    Decision-makers should only take into account directly relevant considerations.

Note: For example, when considering a possible refusal where the person is offshore, the decision-maker may only need to take into account some of the primary considerations.

22    The primary considerations are set out in cl 10 (1). They include:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.

23    Critically, cl 10.1 reads:

Protection of the Australian community

(1)    Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)    The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)    the seriousness and nature of the relevant conduct; and

(b)    the risk that the conduct may be repeated.

24    Paragraph 10.1.1 is concerned with the seriousness and nature of the conduct. Subparagraph (1) reads:

Crimes involving violence of the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

25    Subparagraph (2) provides examples of offences and conduct that are considered serious, and includes various crimes of violence. Relevantly, it also includes in subparagraph 2(f) “the importation of a trafficable quantity of illicit drugs”. Subparagraph (3) provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community and due regard must be given to the extent of the person’s criminal record. Subparagraph (4) contains some other factors that are to be considered. They include any relevant factors the person provides as mitigation and “independent and authoritative sources” of information about a person, including “judicial comments in an individual’s case” and parole assessments.

26    Paragraph 10.1.2 is concerned with the risk that the conduct may be repeated. It provides:

(1)    The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)    The following factors are to be considered, as particularly relevant to this assessment:

(a)    a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)    evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)    evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

27    Paragraph 11 contains the other considerations that are expressed to be “not primary considerations” but which “may be relevant” and, if so, “must be considered”. Subparagraph (2) provides, however, that, generally, these considerations should be given less weight than the primary considerations.

The facts

28    Mr Obele was born in Nigeria in 1973. He arrived in Australia on 28 October 2002 on a Class BN Subclass 136 (Skilled-Independent) visa with his then wife, who was the primary visa applicant.

29    On 14 August 2003 he was arrested and charged in connection with the importation of cocaine. Later he pleaded guilty to two counts of importing into Australia not less than the trafficable quantity of cocaine and one count of attempting to possess a prohibited import, namely cocaine, being not less than the trafficable quantity. The maximum penalty for each offence under the Customs Act was a fine not exceeding $500,000 or imprisonment for 25 years or both.

30    On 25 June 2004 he was convicted and sentenced in the District Court of New South Wales to eight years imprisonment in respect of each offence, the terms commencing in respect of the first offence on 14 August 2003, in respect of the second offence on 14 August 2004, and in respect of the third offence on 14 August 2005, a total term of imprisonment of 10 years. A single non-parole period of six and a half years was set, expiring on 13 February 2010.

31    On 15 September 2008, the Department of Immigration and Citizenship (“the Department”) notified him that consideration was being given to the cancellation of his visa and invited his submissions in response. Three sets of submissions were lodged, one by a firm of solicitors acting on Mr Obele’s behalf, and two by Mr Obele himself. On 17 November 2009, however, a delegate of the Minister notified Mr Obele that he had found that he failed the character test and had exercised his discretion to cancel his visa pursuant to s 501(2) of the Act. On 3 December 2009 Mr Obele applied to the Tribunal for a review of that decision.

The Tribunal’s reasons

32    The Tribunal heard the case on 20 January 2010 and published its decision on 29 January 2010 (see Obele v Minister for Immigration & Citizenship [2010] AATA 58).

33    After setting out the relevant facts, law and policy, and recognising that Mr Obele was deemed to have failed the character test, the Tribunal turned first to the primary considerations bearing on the discretion in s 501(2).

34    It identified the relevant primary considerations as “the protection of the Australian community and the length of time [Mr Obele] has been ordinarily resident in Australia”.

35    With respect to the first consideration, the protection of the Australian community, the Tribunal noted that the Direction identifies two relevant factors: the seriousness and nature of the relevant conduct and the risk of its repetition.

36    With respect to its seriousness, the Tribunal noted the terms of paragraph 10.1(2)(f) of the Direction and paragraph 10.1.1(3), which states that “the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”. It then observed that regard must be had to the number and nature of offences, the period between the offences and the lapse of time since the most recent offence. It also noted that among the factors to be considered under paragraph 10.1.1(4) were judicial comments made about the person, parole assessments and any relevant mitigating factors. It referred to the remarks of the sentencing judge that “the three counts in the indictment encompass a relatively short, but extremely grave episode of criminality” for which no other sentence but imprisonment was appropriate and her Honour’s observations about Mr Obele’s personal circumstances including his stated explanation for the offences.

37    The Tribunal also referred to the three eight-year sentences imposed, describing them as apparently “mid-range” relative to the maximum sentences available. It then said at [15] of its reasons:

Mr Obele referred to discussions between his solicitor and the prosecution over the charges and plea, noting that he knew nothing of the second and third parcels with which he was charged. He said he believed the sentences given were intended as a general deterrent and were harsh, but that he did not have the money to lodge an appeal. Despite Mr Obele’s concern about the process that led to his convictions, the Tribunal may not go behind those convictions.

38    The Tribunal then cited the Full Court’s decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [40]; [1999] FCA 1197 (“SRT”), to support the proposition that the Tribunal must not “impugn the sentence”.

39    In the end, the Tribunal recognised Mr Obele’s criminal conduct was very serious but noted that he had no prior criminal history and, as the sentencing judge had noted, his conduct related to one episode. It also acknowledged that it occurred at a time when Mr Obele was vulnerable because his newly established cleaning business was in financial difficulty, was working away from the support of his wife and had not confided in her about his problems. It referred to the submission from his solicitors that he had limited knowledge of “English language business idea [sic] and ethics in Australia” and was unable to secure enough business to support himself financially. It also referred to what both Mr Obele and his wife had told the Tribunal about their difficulties when they came to this country and the pressure on Mr Obele to support his wife financially, which, it said, was a strong part of Nigerian culture. The Tribunal said this was a relevant consideration under paragraph 10.1.(4) but the Tribunal also observed, “as Mr Obele acknowledged, the difficulty he was in does not in any way excuse his misconduct”.

40    The Tribunal then turned to the second prescribed factor, the risk of repetition. In that context it referred again to his lack of any other criminal history, the sentencing judge’s observation of the prospects of reconciliation with his wife, her Honour’s assessment that his prospects of rehabilitation were reasonable and her acceptance of his pleas of guilty as evidence of “a degree of remorse, an acceptance of responsibility and a willingness to facilitate the course of justice”. It then considered a positive report prepared in October 2008 in which a probation and parole officer had stated, among other things, that Mr Obele was regarded as a model inmate during his time in custody with good prospects of “successful reintegration into the community”. The Tribunal said it was impressed by Mr Obele’s presentation at the hearing.

41    It then referred to his account of self-improvement during his time in custody, which included embarking on a degree and completing a number of vocational courses. It mentioned his hope of obtaining work in the construction industry if he were released into the Australian community. It noted that both Mr Obele and his former wife had said that they were hopeful of being reunited in that event. The Tribunal observed that they had maintained a strong emotional attachment and that Ms Obele impressed as “a strong person” who had worked very hard to qualify as a registered nurse in Australia and made it clear that she was well integrated into the Australian community and in a position now to provide both emotional and financial support for Mr Obele on his release.

42    The Tribunal then noted the submission for the Minister that there was a risk Mr Obele might reoffend because his motivation for involvement in crime was a financial one and, if he again fell into financial difficulty, he might be similarly motivated. The Tribunal considered that prospect was significantly lower than it was at the time of the commission of the offences because of Mr Obele’s rehabilitation and the changes in his wife’s situation.

43    It concluded:

Thus, having regard to Mr Obele’s lack of a prior criminal record, the circumstances in which the crimes were committed, the proactive steps Mr Obele has taken towards his rehabilitation, his conduct as a ‘model’ prisoner, and the attitudes he expressed towards drug-related crime and in relation to his remorse, all of which the Tribunal found credible, the Tribunal has formed the view that in the light of the support he will receive on release on parole, there is very little risk of his reoffending.

44    The Tribunal then proceeded to consider the length of time he was ordinarily resident and other relevant considerations, which it is not necessary to canvass here, before determining to exercise the s 501 discretion in Mr Obele’s favour.

Grounds 1, 2 and 2A – Did the Tribunal misconstrue the Direction, fail to make requisite findings, or fail to have regard to a relevant consideration?

45    I propose to consider these three grounds together because, as I remarked earlier, each gives expression to the same basic grievance, which is that the Tribunal misconstrued or failed to have proper regard to the terms of the Direction.

46    Counsel for the Minister, Mr Johnson SC, submitted that the Court should infer from the Tribunal’s reasons that it misconstrued or failed to have proper regard to paragraphs 5.2(2)(a) and/or 10.1(2)(a) and (b) of the Direction because it did not make findings on all the issues the paragraphs required it to address. In particular, he contended, the Tribunal concentrated on the magnitude of the risk of reoffending but did not identify the nature of any harm that Mr Obele may cause the Australian community if he were to reoffend. He argued that the effect of so doing was to disable the Tribunal from carrying out “the weighting exercise” required of it by the Direction by which I took him to mean the task of assessing the level of risk of harm to the community. He explained that the size of the risk was not necessarily proportionate to the harm that could ensue if it were to eventuate.

47    Paragraph 5.2(2) is expressed in mandatory language and requires a decision-maker, who is considering whether the discretion in s 501(2) of the Act should be exercised favourably or unfavourably to a visa-holder, to have regard to the potential harm, if any, the visa-holder may cause to the Australian community. This is an inquiry oriented to the future. The decision-maker is directed to reach a conclusion about this by considering both “the nature of any harm that the person concerned may cause” and “the risk of that harm occurring”.

48    The opening words of paragraph 10.1(2) make it clear, in my view, that it is intended to give the decision-maker more determinate guidance in how she or he performs the task prescribed by paragraph 5.2(2). The paragraph provides that when performing the prescribed task of “assessing the level of risk of harm to the community” a person poses if she or he continues to be entitled to remain in the Australian community, the decision-maker’s conclusion is, again, to be a function of two factors: “the seriousness and nature of the relevant conduct” and “the risk that the conduct may be repeated”.

49    The precise relationship between the two paragraphs is unclear. Although one natural reading of the two together is that paragraph 10.1(2)(a) is intended to make paragraph 5.2(2)(a) more concrete, and, similarly, paragraph 10.1(2)(b) should be read with paragraph 5.2(2)(b), paragraph 10.1(2) deals in terms with assessing the “risk of harm to the community” which is the subject only of paragraph 5.2(2)(b).

50    The relationship was not fully explored in argument before me, although it was common ground that, in some sense, paragraph 5.2(2) was elaborated or made more determinate by paragraph 10.1(2) (and the following paragraphs which give further guidance in relation to the latter paragraph). This seems correct to me. Paragraph 10.1(2) presupposes as much, because it assumes that the decision-maker is required to consider the potential for harm to the community if the person continues to be entitled to reside within it, which is the subject given to her or him to consider by paragraph 5.2(2).

51    In oral submissions, Ms Baw, who appeared for Mr Obele pro bono, seemed to take the position that paragraph 5.2(2) was exhausted by paragraph 10.1(2), so that, in effect, the decision-maker need only apply paragraph 10.1(2) to the circumstances of the case in order to comply with the direction in paragraph 5.2(2).

52    Whether this proposition is correct is something that, in my view, should be left to an appropriate case in which to fully explore its implications. For the purposes of this case, it is sufficient to note that it is clear enough that the Tribunal was required by the Direction to have regard to the potential harm Mr Obele might cause to the Australian community in the future and that its assessment – a prediction, in effect – of this was to be a function of two matters: considering the risk of some harm occurring (that is, its probability) and the “nature” of that harm (in the words of 5.2(2)) or “the seriousness and nature of the relevant conduct” (in the words of 10.1(2)).

53    It was common ground that a failure to do this by the Tribunal would amount to jurisdictional error and this is undoubtedly correct. It would plainly be an error that caused the Tribunal’s exercise of the discretion in s 501(2) to seriously miscarry since it is a fundamental feature of the Direction’s requirements that the potential for harm to the community be assessed in the light of both the probability of the harm occurring and the nature of that harm. The two-fold nature of this deliberative process is emphasised in both paragraphs 5.2(2) and 10.1(2). Put in more canonical terms, a failure to appreciate this requirement of the Direction would amount to an error of law which caused the Tribunal to ask itself the wrong question so that its exercise or purported exercise of power was thereby affected. See Craig v South Australia (1995) 184 CLR 163 at 179.

54    Thus, the real issue between the parties was the proper inference to be drawn from the Tribunal’s reasons as to whether it had performed the task prescribed for it by the Direction and, in particular, whether it had properly assessed the harm that Mr Obele may cause to the Australian community if he continues to reside within it by considering not only the probability of the harm occurring but the nature of any harm he may cause.

55    In my opinion, the Tribunal did perform its statutory task. In paragraph 12 of its decision it identified the protection of the Australian community as one of the two relevant primary considerations to which it was required to have regard. Then, under the heading “Protection of the Australian Community”, the Tribunal stated:

Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

56    It proceeded to quote the precise terms of paragraph 10.1.1(2)(f) – which captures the nature of the conduct involved in this case – and of paragraph 10.1.1(3), which provides that the sentence imposed is considered indicative of the seriousness of the offender’s conduct against the community. It noted the requirement in that paragraph to have regard to the number and nature of the offences, the period between them and the time elapsed since the most recent offence. It referred to the remarks of the sentencing judge where her Honour said that “the three counts in the indictment encompass a relatively short, but extremely grave episode of criminality”. It also said in its own view the criminal conduct involved in the three offences was “very serious”.

57    Mr Johnson argued, in effect, that the fact that the Tribunal discussed Mr Obele’s past offences and noted their seriousness does not necessarily mean that it turned its mind to the harm he might cause in the future because (as he put it) “that says nothing about the nature of the harm he poses in the future”. He said the Tribunal had to ask itself what would happen if the small risk of re-offending eventuated, what form it is likely to take and what harm may ensue to the community if it does. Ms Baw’s response was that it was self-evident from the context in which the Tribunal referred to the seriousness of the offending conduct that it recognised the harm to the Australian community. Mr Johnson, however, submitted that:

[t]hese things are not-self-evident. The fact that somebody commits a particular type of offence, for instance, doesn’t necessarily mean that their risk of re-offending is confined to that offence. You can have people who are convicted for a particular kind of conduct but who later pose a risk for some other reason.

58    Whilst there is force in Mr Johnson’s submission, where, as here, the offender has no prior criminal record, the offences he has committed provide the best and perhaps the only real indicator of the harm he might cause in the future. The Tribunal adverted to cll 10(1) and 10.1.1. It referred to the relevant primary considerations under the rubric of the protection of the community. It expressly considered the seriousness and nature of the relevant conduct as well as the risk that the conduct may be repeated. It also referred repeatedly to the serious nature of the offences. In context it is implicit that it had in mind the harm to the community posed by such offences.

59    I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of re-offending in which sentencing judges routinely engage is based on the past. When the Direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it. The fact that an offender has been involved in drug trafficking in the past provides some evidence of the kind of harm in which he might engage in the future and I have no doubt that the Tribunal had this in mind. As for other harm he might occasion to the community, the Tribunal acknowledged that Mr Obele’s motivation for criminal activity was financial gain and observed that “such a motivation could arise in future if he again finds himself in financial difficulties”. Importantly, it did not limit its remarks to a motivation to commit this kind of offence. It is true that the Tribunal did not describe the harm drug trafficking causes the community. But it referred to the seriousness of the offences in the context of directing itself to paragraph 10.1(2)(a). I therefore accept that on a fair reading of the decision as a whole the Tribunal did not fall into jurisdictional error. It is well accepted that a court should not engage in over-zealous scrutiny of the reasons of an administrative tribunal to tease out some inadequacy in the expression so as to turn judicial review into a reconsideration of the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

60    Mr Johnson argued that the Tribunal’s failure to expressly advert to the nature of the harm might suggest that it did not have regard to it. He relied on the remarks of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [34]-[35]; [2001] HCA 30 on s 430 of the Act, which is in similar terms to s 43(2B) of the Administrative Appeals Tribunal Act and which requires the Tribunal to include in its written reasons its findings on material questions of fact. Her Honour said that a failure by the Refugee Review Tribunal to refer to, or make a finding about, a particular matter requires the inference to be drawn that it did not consider the matter to be material. At [69] McHugh, Gummow and Hayne JJ said that “[t]he provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. In Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30, however, the Full Court held at [19]-[20] that a failure to make express findings about certain matters referred to in a sub-paragraph of the Migration Regulations 1994 (Cth) did not in the circumstances of that case demonstrate that the Tribunal did not have regard to them. The same is true, in my view, here.

61    Ms Baw submitted, in effect, that the real criticism of the Tribunal was that it did not make explicit what was implicit in its reasons and the Minister was merely inviting a merits review. I accept the submission. Whilst it would no doubt have been preferable for the Tribunal to expose its entire reasoning process with great clarity, its failure to do so does not involve jurisdictional error.

62    For these reasons I reject grounds 1, 2 and 2A of the application.

Ground 3 - The alleged failure to adhere to a legal requirement

63    The Minister argued that the Tribunal failed to observe a requirement at law not to impugn either Mr Obele’s convictions or the essential facts upon which they were based.

64    He complained that the Tribunal proceeded “on the basis, in effect, that [Mr Obele] did not have the requisite mens rea for the offences of which he was convicted” when intention is an element of the offences. For this reason, the Minister submitted, the Tribunal’s assessment of the risk of reoffending and its decision as a whole was beyond power and thus, vitiated by jurisdictional error.

65    In my opinion, the complaint is unjustified and it pays insufficient attention to the repeated warnings in the authorities against construing the words of non-judicial decision-makers “minutely and finely”, as Heydon J recently put it in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 at footnote 60 “with an eye keenly focussed on...or an ear keenly attuned to the perception of error”. I am satisfied that the Tribunal did not proceed, contrary to the Minister’s contention, on the basis that Mr Obele did not have the necessary mens rea to commit the offences.

66    The Tribunal was well aware that it could not go behind the convictions. During the course of Mr Obele’s evidence the Senior Member, in questioning him, said:

Now, I’m not going to ask you to tell us about the actual offences which you were convicted of because the tribunal is not allowed to go behind the convictions. We must accept the convictions and the main facts which led to those convictions taking place.

67    And in its reasons the Tribunal quoted from the decision of the Full Court in SRT at [40] where the Court said:

... [I]t is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

68    I see nothing in the Tribunal’s reasons to persuade me that it offended this principle.

69    The Minister drew attention to the following statement in the Tribunal’s reasons, asserting it to be a finding of the Tribunal, and pointing out that it is an element of the offences under s 233B(1)(b) and (c) of the Customs Act that the accused had knowledge of what was imported or possessed, citing He Kaw Teh v The Queen (1985) 157 CLR 523 especially at 537, 539, 542, 545, 589 and 603 and R v Sanengsai-Or (2004) 61 NSWLR 135 at [64]-[75]:

He did not know what was in the parcel he agreed to receive but he knew what he was doing was wrong.

70    But this was not a finding. It was a restatement of what Mr Obele told the Tribunal. That is obvious when the paragraph from which the statement is drawn is read as a whole:

[19]    The Tribunal was impressed by the genuineness of Mr Obele’s presentation at the hearing, and his lack of embellishment. He said he is “very ashamed of his crime” and expressed his remorse. He did not know what was in the parcel he agreed to receive but he knew what he was doing was wrong. While in prison, he has lived with people with drug problems. He knows how drugs affect people: “it is a sickness” and he does not want to associate with people who promote drugs. He expressed his sorrow that he was involved in drug related crime.

71    What Mr Obele said to the Tribunal might cast doubt about the extent of his insight into his wrongdoing and therefore the genuineness of his remorse. If the Tribunal erred in that regard, however, it was an error within jurisdiction, not amenable to review.

72    In any case, a perusal of his evidence to the Tribunal does not support the conclusion that Mr Obele did not know that the parcel contained cocaine, so it is unlikely that is what the Tribunal actually meant when it said he did not know what was in the parcel. This emerges from the following exchange during cross-examination.

Q    Well, when someone suggests that you could make a lot of money out of going to pick up a package and this is a person who is not a friend of yours, but someone that you’ve worked with and has just met you at a pub, you must have been a bit suspicious about that suggestion, weren’t you---I didn’t say I never had knowledge of what I should have going on. But I didn’t know the calamity of what is going on. I didn’t know up till I got arrested. Didn’t know how big it was.

Q    You weren’t - - -?--- Because I wasn’t briefed. When I received it, I didn’t decompose it. And I, I, some way, I have to put it in a bag and send it out to someone. I was part of the agreement. And I didn’t know how big, you know, deals there was.

[Emphasis added.]

73    Mr Obele did dispute his guilt about the second and third charges. But it is abundantly clear that the Tribunal was not swayed by what he had to say. That appears from paragraph 15 which is extracted earlier in these reasons at [37].

74    It was at this point that the Tribunal referred to the decision in SRT and the principle for which it stands. The Court would not lightly conclude that the Tribunal did precisely what it said it must not do. In my view, that conclusion should not be drawn. It appears to me that the Tribunal’s statement that Mr Obele did not know what was in the parcel is no more than an awkward summary of his evidence which was to the effect that he did not know precisely how much he had in the first parcel. The Minister seemed to accept that this was the correct way to view the evidence. (See T 15). It is not an indication that the Tribunal proceeded on the basis that Mr Obele did not have the necessary mens rea to commit the offences. A conviction under s 233B may be obtained regardless of whether the accused had knowledge of the quantity involved: Cheng v The Queen (2000) 203 CLR 248 at [24]-[25]; [2000] HCA 53. The authorities upon which the Minister relied deal with the intention to import narcotic drugs, not with the intention to import a particular quantity of narcotic drugs.

75    The Minister also relied on a later passage in the reasons where the Tribunal took into account “the circumstances in which the crimes were committed” to support its conclusion that there was “very little risk of his reoffending”, suggesting this was an acceptance of Mr Obele’s evidence about his state of mind. But the passage also needs to be read in context. This is the context in which it appears. I referred to part of it in my discussion of the first three grounds of appeal.

[22] Mr Johnson [the Minister’s legal representative and not counsel for the Minister on this application] submitted that there is a risk of Mr Obele reoffending because his motivation for being involved in criminal activity was financial. Such a motivation could arise in future if he again finds himself in financial difficulties. The Tribunal considers that the likelihood of this re-occurring is significantly less than in 2002/2003 because of Mr Obele’s rehabilitation which will be assisted by Ms Obele’s changed situation, their plan to live together and her strong influence on him in such circumstances. Thus, having regard to Mr Obele’s lack of a prior criminal record, the circumstances in which the crimes were committed, the proactive steps Mr Obele has taken towards his rehabilitation, his conduct as a ‘model’ prisoner, and the attitudes he expressed towards drug-related crime and in relation to his remorse, all of which the Tribunal found credible, the Tribunal has formed the view that in the light of the support he will receive on release on parole, there is very little risk of his reoffending.

[Emphasis added.]

76    On a fair reading of the Tribunal’s reasons the reference to the circumstances in which the crimes were committed is a reference to the straightened financial circumstances in which Mr Obele found himself at the time the crimes were committed. It is part of the Tribunal’s response to the Minister’s submission that there was a risk of Mr Obele reoffending because his motivation was financial. The point the Tribunal was making in that paragraph was that his current circumstances are different from the circumstance in which the crimes were committed.

77    The Tribunal was entitled to take those circumstances into account. The same kind of evidence was before the sentencing judge and her Honour made no finding to the contrary. As the Full Court explained in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653:

There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.

[Emphasis added.]

78    Their Honours acknowledged “that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community”. But they added:

However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel.

79    Ground 4 is not made out.

Conclusion

80    As the Minister has failed to establish jurisdictional error, the application must be dismissed with costs.

Orders

81    The application is dismissed.

82    The applicant is to pay the first respondent’s costs.

Associate:

Dated:    22 December 2010