FEDERAL COURT OF AUSTRALIA

Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

The application

1    Mr Rodchompoo seeks judicial review of a decision of the Administrative Appeals Tribunal on referral to his Court from the Federal Circuit Court of Australia.

Background

2    Mr Rodchompoo is a 38 year old citizen of Thailand. He arrived in Australia on 3 August 1993, at the age of 13, and has resided in Australia since. He has a criminal record comprising over 65 offences which include drug offences, criminal damage, breach of bail, dishonesty offences, public order offences and offences of violence. He has accumulated numerous fines and has received several prison sentences including:

    19 January 2004: 12 months’ imprisonment (suspended) for unlawful wounding.

    25 July 2006: 8 months’ imprisonment for breach of order, knowingly obtaining payment only part payable.

    19 January 2009: 8 months’ imprisonment for obtaining financial advantage.

    19 April 2012: 2 years’ imprisonment for aggravated assault with intent to rob.

    8 September 2015: 7 months’ imprisonment for drug possession.

3    In relation to these matters, on the first day’s hearing of the application, Mr Rodchompoo stressed that he had been in the ‘wrong time and the wrong place’ and was ‘not a bad person’.

4    On 22 January 2007, the Department of Immigration and Multicultural Affairs (as it then was) issued Mr Rodchompoo with a warning of possible future liability under s 501 of the Migration Act 1958 (Cth), stating that whilst a delegate of the Minister for Immigration and Multicultural Affairs had decided not to revoke Mr Rodchompoo’s visa, any further criminal conviction would lead to reconsideration of the cancellation of his visa. He was told that his disregard of this warning would weigh heavily against him if his case was reconsidered.

5    On 17 May 2012, the Department wrote again to Mr Rodchompoo and notified him that his visa may be liable for cancellation on character grounds pursuant to s 501 of the Migration Act.

6    Despite this notification, on 7 August 2012, the Department again decided not to cancel Mr Rodchompoo’s visa (Notice of Decision Not to Cancel Visa under s 501 of the Migration Act) and provided Mr Rodchompoo with the following advice:

Please note: this decision does not mean that your case cannot be considered again under s501 in the event of further criminal offending by you.

7    The following day, Mr Rodchompoo signed an acknowledgment that he had received the Notice of Decision. The acknowledgment stated:

I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.

8    Since receiving the Notice of Decision, Mr Rodchompoo has received some 28 convictions. Specifically, on 8 September 2015, Mr Rodchompoo was sentenced to seven months’ imprisonment for possession of a prohibited drug with intent to sell or supply (methylamphetamine), six months’ imprisonment for possession of stolen or unlawfully obtained property, five months’ imprisonment for possession of prohibited drugs with intent to sell or supply (cannabis), two months’ imprisonment for carrying (possessing) an article with intent to cause fear, two months’ imprisonment for possession of a prohibited drug (cannabis), one month imprisonment for damaging property, one month imprisonment for possession of a prohibited drug, one month imprisonment for breach of bail, and one month imprisonment for possession of drug paraphernalia in or on which there was a prohibited drug or plant (two counts), with nine of the 10 terms of imprisonment imposed on this date to be served concurrently.

9    On 29 March 2016, Mr Rodchompoo’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act. This was a mandatory cancellation. Mr Rodchompoo was notified of the visa cancellation decision in a letter dated 29 March 2016, which also informed him of the opportunity he had to seek revocation of the cancellation decision.

10    On 5 April 2016, Mr Rodchompoo made representations seeking revocation of the mandatory visa cancellation. This was supported by letters of support from other persons.

11    By letter dated 28 June 2016, Mr Rodchompoo was notified that the delegate was not satisfied that he passed the character test or that there was any other reason why the original decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the visa. The delegate’s decision included a statement of reasons, dated 24 June 2016.

12    On 4 July 2016, Mr Rodchompoo lodged an application with the Tribunal for review of the delegate’s decision.

In the Tribunal

13    On 4 November 2016, the Tribunal affirmed the delegate’s decision: Rodchompoo v Minister for Immigration and Border Protection [2016] AATA 872. The Tribunal referred to Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, issued by the Minister on 22 December 2014. The Tribunal also referred to the relevant principles and detailed the required primary and other considerations to be had in exercising the discretion in s 501CA(4) of the Migration Act (at [18]­[22]).

14    The Tribunal concluded (at [33]) that, taking into account the nature, frequency and seriousness of Mr Rodchompoo’s offences, all of the comments of the sentencing magistrates and judges, Mr Rodchompoo’s deception of the Department and disregard of formal warnings, together with the ‘General Guidance’ and ‘Principles’ set out in the Direction, the offences committed by Mr Rodchompoo weighed, to a significant degree, in favour of the cancellation of the visa. The Tribunal found (at [25]) that Mr Rodchompoo’s offending had clearly been serious, as demonstrated by the sentencing remarks of the courts.

15    As to the risk to the Australian community of Mr Rodchompoo engaging in further offences or other serious conduct, the Tribunal considered (at [35]) that this was a risk that the Australian community should not be expected to tolerate. The Tribunal noted the pessimism of the courts (at [38]) and the Prisoners Review Board of Western Australia (at [40]) with respect to Mr Rodchompoo’s unmet treatment needs and commitment to rehabilitation, Mr Rodchompoo’s numerous breaches of court orders (at [41]) and disregard of formal warnings from the Department (at [42]) and Mr Rodchompoo’s attempts to minimise his involvement in the offending in evidence before the Tribunal (at [43]). The Tribunal concluded (at [44]-[45]) that Mr Rodchompoo’s risk of re-offending was very high and weighed in favour of non-revocation of the cancellation of Mr Rodchompoo’s visa.

16    In relation to the expectations of the Australian community, the Tribunal found (at [50]), that having regard to the principles in cl 13.3 of the Direction, whilst the Australian community may have a greater tolerance for a person who had lived in Australia for 23 years, such tolerance would have been exhausted in light of the extensive number of convictions, the frequency of offending, the blatant disregard of warnings, the pessimistic assessment of rehabilitation and the significantly high risk of re-offending. The Tribunal concluded (at [50]) that the Australian community would expect that his visa be cancelled.

17    The Tribunal also examined (at [51]-[64]) the ‘other considerations’ detailed in the Direction that were relevant to revocation requests, including, amongst others, Australia’s non-refoulement obligations and the strength, nature and duration of Mr Rodchompoo’s ties to Australia. The Tribunal noted that Mr Rodchompoo has resided in Australia since arriving in 1993, at the age of 13, and has family ties in Australia. However, the Tribunal balanced this against his history of criminality and unemployment. The Tribunal (at [57]) concluded that Mr Rodchompoo has strong ties to Australia, but not to the extent that they should outweigh the protection of the Australian community, being a primary consideration under the Direction. It accepted (at [62]-[64]) that Mr Rodchompoo would face impediments if removed from Australia.

18    After weighing up all of the primary and other relevant considerations the Tribunal found (at [65]) that the need to protect the Australian community was not outweighed by other considerations that may be more favourable to Mr Rodchompoo. The Tribunal therefore affirmed the delegate’s decision.

Judicial review

19    On 29 November 2016, Mr Rodchompoo lodged an application for judicial review of the Tribunal’s decision in the Federal Circuit Court.

20    On 30 January 2017, the Federal Circuit Court ordered by consent that the matter be transferred to this Court.

In this Court

21    On 16 February 2017, I made orders programming the matter to hearing, including an order that Mr Rodchompoo file and serve, on or before 6 April 2017, any amended application giving particulars of the grounds of review, and any further affidavits upon which he sought to rely at the hearing. No amended application or any further affidavits were filed by Mr Rodchompoo before the first day of the hearing.

The first grounds of application before the Court

22    The grounds pressed by Mr Rodchompoo in his application, originally filed in the Federal Court of Australia, were in the following terms:

1    I HAVE NO FAMILY IN THAILAND

2    I HAVE NO SUPPORT WHATSOEVER

3    I HAVE BEEN IN AUSTRALIA 23 YEARS ALL OF MY FAMILY ARE IN AUSTRALIA AND ALL OF MY LOVED ONES

Consideration of the first grounds of application

23    Speaking to his grounds at the hearing on 30 May 2017, Mr Rodchompoo effectively advanced a plea in mitigation, but was unable to advance any grounds of jurisdictional error.

24    The Court is only able to grant relief in relation to a decision of the Tribunal where that decision involves jurisdictional error: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ (at [76]­[78]).

25    The grounds were not particularised with detail; they did not specify the nature of any alleged jurisdictional error. Failure to particularise a ground of review may be a sufficient basis for it to be dismissed: see, for example, DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 per Colvin J (at [4]-[8] and the cases therein cited). However, it would be rare for a court not to explain with a litigant in person the true nature of the complaint in relation to the decision, the subject of appeal or review.

26    In my view there is no doubt, in any event, that the Tribunal had regard to the matters raised by Mr Rodchompoo in his grounds. This is apparent from the Tribunal reasons at [50], [54], [57] and [62]-[64].

Constitutional validity of s 501(3A) of the Migration Act

27    Delivery of judgment, following the hearing of this application on 30 May 2017, was postponed until the outcome of an application by one Mr Falzon in the High Court of Australia in which Mr Falzon sought relief on the basis that s 501(3A) of the Migration Act is invalid. Mr Falzon asserted that s 501(3A) of the Migration Act is invalid because it purports to confer the judicial power of the Commonwealth on the Minister in a manner contrary to Ch III of the Constitution. The application was filed in the High Court on 14 February 2017. That argument was rejected by the High Court in a decision published on 7 February 2018: Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

28    Mr Rodchompoo had been informed by the Court that delivery of judgment in this matter would await the decision of the High Court in Falzon.

Deferral of delivery of judgment

29    Judgment in this matter was scheduled for delivery on 15 February 2018, after delivery of Falzon. On the morning of that day the Court was notified that freshly appointed solicitors for Mr Rodchompoo sought a deferral of delivery so that they could make submissions to the Court in relation to possible further arguments for Mr Rodchompoo. I agreed to defer delivery for seven days.

30    On 21 February 2018, an application for deferral of the delivery of judgment until 21 March 2018 was filed with a detailed supporting affidavit. The affidavit explained that Mr Rodchompoo had understood from earlier exchanges with the Court at the initial hearing that he would have the opportunity to take advice from solicitors after delivery of Falzon. The affidavit in support gave detailed evidence as to difficulties in communication with Mr Rodchompoo, detained on Christmas Island. It also detailed a further avenue of possible argument, which was being explored by his pro bono legal advisors.

31    The Minister opposed the application for the adjournment, but was unable to point to any specific prejudice beyond the cost of dealing with any further argument. In the circumstances, I was satisfied that the interests of justice required a further deferral of judgment delivery in accordance with the application and made orders providing, relevantly, for the filing of an amended application.

32    As a result of those orders, there was further argument in the matter, which is addressed in the following reasons.

The second grounds of application before the Court

Evidence

33    In the relisted application in which Mr Rodchompoo was represented by pro bono solicitors and counsel, Mr Rodchompoo relied upon three affidavits, two of Mr Sridaran, affirmed on 21 February 2018 (First Sridaran Affidavit) and 27 March 2018 (Second Sridaran Affidavit) and an affidavit of Mr Rich, affirmed on 6 March 2018. The Minister relied upon an affidavit of Mr Corbould, affirmed on 5 April 2018.

34    The First Sridaran Affidavit detailed the history of involvement of solicitors and counsel and explains the delay in instructions received. It referred, amongst other things, to a telephone call had between Mr Rodchompoo and Mr Sridaran during which the following information was provided:

(1)    Mr Rodchompoo does not currently have a Thai passport as the Thai passport that he used to travel to Australia is lost and would be expired;

(2)    Mr Rodchompoo does not have his Thai birth certificate and is uncertain of its location;

(3)    if Mr Rodchompoo were to arrive in Thailand without his passport or birth certificate he believed he may be detained by the Thai authorities;

(4)    Mr Rodchompoo’s grandfather and uncle, who had lived in Thailand, were now deceased;

(5)    Mr Rodchompoo has not contacted anyone in Thailand for 25 years;

(6)    Mr Rodchompoo was concerned that he had not completed military service in Thailand and could be detained on arrival as a result; and

(7)    Mr Rodchompoo has limited access to emails on a computer.

35    The First Sridaran Affidavit deposed further that in light of instructions from Mr Rodchompoo, to Mr Sridaran had undertaken some preliminary research in relation to matters which may be relevant. His preliminary research of internet sources had indicated the following:

(a)    In Thailand, "[w]ithout an ID card, you can't own land, take out a loan, start a business, get married, receive free education and healthcare, travel, vote and a myriad of other rights". This information is from an article entitled 'The Importance of Being Thai: giving citizenship to thousands awaiting recognition', published in the Nation on 14 March 2017…

(b)    To replace a Thai ID card, applicants must have a "current Thai passport" and "if the applicants do not have [a] Thai passport, Thai House Registration or Birth Certificate and the Australian Photo Identity showing the same name and last name as Thai National ID card, are required". This information is from the Royal Thai Consulate-General, Sydney website…

(c)    "Compulsory Treatment Centers (sic) is the main governmental response to illicit drug use in Thailand. Thai drug users, who have been through these centers (sic), describe the over-arching attitude at these facilities as "buck-up and stop using drugs". There is no attempt to address the underlying problems that perpetuate the addiction, or offer any real psychological or pharmacological treatments." This information is from a report produced by Mark Tyndall for the World Bank Group dated August 2011 entitled 'Harm Reduction Policies And Interventions For Injection Drug Users In Thailand'…

(d)    In 2010, 60% of drug patients were treated in compulsory treatment centres run by the military. Treatment for drug use in Thailand "remains limited and of poor quality". This information is from a briefing by James Windle of University of East London dated April 2015 entitled 'Drugs and Drug Policy in Thailand'…

(e)    In 2017, the "Interior Ministry and military continued to operate boot camp-style forced rehabilitation of drug users". This information is from an article published by Human Rights Watch entitled 'Thailand - Events of 2017'…

(f)    "There have been reports of cruel, inhuman, and degrading punishment within such centres", in describing the compulsory drug treatment centres in Thailand. This information is from an article published in the BMC International Health and Human Rights journal entitled 'Compulsory drug detention center experiences among a community-based sample of injection drug users in Bangkok, Thailand'…

(g)    "Previously, failing to register for military service was punishable by up to three years’ imprisonment; however in February 2016 it was reported the newly passed Reserved Forces Act had increased he punishment to four years’ imprisonment". This information is from 174321 (Refugee) [2017] AATA 2011 (20 October 2017) at [29] quoting a Department of Foreign Affairs and Trade report dated 5 September 2017 on Thailand…

[all the source documents were provided]

36    In the First Sridaran Affidavit, Mr Sridaran deposed that, in light of Mr Rodchompoo’s information and his firm’s preliminary research (detailed above), Mr Rodchompoo might have a basis to seek leave to amend his application to add further grounds. Specifically, in respect of potential jurisdictional error on the part of the Minister’s delegate and the Tribunal, the First Sridaran Affidavit listed suggested grounds that there was no evidence before:

(1)    the delegate to make the findings in paragraph 50 of the statement of reasons for decision under s 501 CA of the [Migration Act]; and

(2)    the [Tribunal] to make the findings in paragraph 64 of [its decision].

37    The Second Sridaran Affidavit, relevantly, annexes the Statement of Facts and Contentions (SOFAC) filed in the Tribunal for the Minister. Mr Rich’s affidavit, amongst other things, annexes the original transcript of the hearing before the Tribunal. The affidavit of Mr Corbould annexes directions made in the Tribunal for the filing of a Statement of Facts, Issues and Contentions by Mr Rodchompoo and any further evidence on which he sought to rely.

38    On the final day of hearing in this matter, on 10 April 2018, and with the benefit of solicitors and counsel, the following new grounds were advanced for Mr Rodchompoo, contained in a further amended originating application filed 27 March 2018:

1.    The Tribunal had no jurisdiction to make its decision on 4 November 2016 because:

(aa)    The adoption by the Tribunal of all the arguments and conclusions in the Respondents’ Statement of Facts and Contentions filed and dated 19 September 2016, without attribution, raises a concern as to whether there has been:

(i)    a failure by the Tribunal to genuinely consider all the primary and other relevant considerations; and

(ii)    a constructive failure on the part of the Tribunal to discharge its statutory role,

as required by the First Respondent’s Direction No 65 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ issued on 22 December 2014, in accordance with the First Respondent’s powers under s 499(1) of the Migration Act.

(a)    The Tribunal failed to make reasonable inquiries into factual matters that were readily available and of critical significance to the decision.

(b)    The Tribunal failed to take into account mandatory relevant considerations – namely:

(i)    the extent of any impediments that the applicant may face if removed from Australia to Thailand – specifically, the medical and economic support available to the applicant; and

(ii)    the applicant’s rehabilitation treatment and the effect of that on the likelihood of the applicant not engaging in further criminal or other serious conduct.

(c)    The Tribunal did not comply with the terms of Ministerial Direction No 65 when it purported to consider the impact on victims of its decision not to revoke, despite there being no evidence to support its finding.

(d)    The Tribunal’s Decision was so manifestly unreasonable or irrational that no sensible Tribunal acting reasonably could have made it. Taking into consideration the history of the applicant, his mental health and drug dependency issues, and the lack of resources available to assist him should he be deported to Thailand, the Tribunal’s Decision was manifestly unreasonable or irrational.

Consideration of the second grounds of application

39    Before coming to the specific grounds of the application, I note that Mr Rodchompoo’s background is developed substantively by counsel as follows.

40    Mr Rodchompoo was born in 1980 in Thailand and was raised by his grandfather as a Buddhist and studied Buddhism. He was brought to Australia in 1993, at the age of 13, to live with his mother and his Australian stepfather, described as being a paranoid schizophrenic. There was constant friction and hostility in the family, leading to difficulties at school and delinquency on the part of Mr Rodchompoo. From the age of 15 to 16, he was in foster care. He lived at home for a short period before being ‘kicked out’ by his mother at 18. From that age, he was effectively living on the streets and, subsequently, developed a drug and alcohol addiction.

41    Counsel for Mr Rodchompoo said they do not ‘shy away’ from the applicant’s numerous criminal convictions, including prison sentences in 2006 and 2012. Until 2015, all his drug related convictions were for possession of cannabis, which had resulted in various fines. In 2015, he pleaded guilty to possessing both cannabis and methylamphetamine with ‘intent to sell or supply’. The evidence before the Tribunal was Mr Rodchompoo pleaded guilty because he thought he would receive a lower sentence and that he would be immediately released on the basis of time spent in remand. He pleaded guilty despite having, what counsel emphasised as being, a small amount of the drugs and amounts substantially less than required to be deemed to be in possession with intent to sell or supply, although Mr Rodchompoo was found with a reasonably large amount of cash ($1,025). At the same time, it was these convictions of seven months and five months cumulatively which caused him to be sentenced to the requisite 12 months imprisonment threshold prescribed in s 501 of the Migration Act. During his term of imprisonment, Mr Rodchompoo did not receive treatment for his drug and alcohol addiction, despite various intervention programs being recommended. Mr Rodchompoo’s prison reports from 2006 and 2012 indicate that while in prison he was well behaved.

42    In October 2015, the Prisoners Review Board of Western Australia noted Mr Rodchompoo’s ‘unmet treatment needs’ and ‘significant mental illness’. The Department of Corrective Services report recorded ‘yes’ to Mr Rodchompoo having a medical status of ‘essential medication’ and ‘psychiatric’.

43    On 29 March 2016, when Mr Rodchompoo’s visa was cancelled, his case manager at the Department noted:

Possible detention management issues include (eg. mental/physical health, custodial violence, self harm etc): There is a psychiatric alert on Mr RODCHOMPOO’s latest summary report.

44    While at the Northwest Point Immigration Detention Centre on Christmas Island, Mr Rodchompoo has been receiving drug and alcohol treatment and counselling with the International Health and Medical Services (IHMS).

Ground 1(aa) - the Tribunal’s reasons

45    Counsel for Mr Rodchompoo have produced a generated comparison between the Tribunal’s reasons and the Minister’s SOFAC, showing that they are substantially similar. The document shows that the consideration in the Tribunal’s reasons from [11] onwards was, it is argued, ‘copied without attribution’ with only minor exceptions from the Minister’s SOFAC. It is submitted for Mr Rodchompoo that this is not a case where the Tribunal has merely copied an uncontroversial chronology or a statement of facts, but it has quite clearly copied, almost verbatim, the arguments and conclusions made by the Minister in its SOFAC and expressed them to be the Tribunal’s findings. Despite the Tribunal’s statement that it had ‘considered and weighed all the primary considerations and other relevant considerations’ (at [65]), counsel for Mr Rodchompoo contend that the substantial reproduction of the SOFAC raises questions as to whether it did in fact ‘consider’ all the primary and other relevant considerations as required by the Direction and whether it did in fact ‘weigh the evidence’ in the sense required in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (at [5]) and Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 (at 530). In LVR (at [5]), the Full Court (North, Logan and Robertson JJ) said:

Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner’s written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal’s reasons were taken from the Commissioner’s written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner’s decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.

(Emphasis added.)

46    For Mr Rodchompoo it is stressed that the obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process in which each relevant matter receives genuine consideration: LVR (at [145]) and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99 per the Court (Emmett, McKerracher and Foster JJ).

47    Mr Rodchompoo submits that there are substantial concerns as to:

(a)    whether each relevant matter required to be considered under the Direction received genuine consideration; and

(b)    whether the Tribunal discharged its statutory role and performed its allotted task.

48    In raising these concerns Mr Rodchompoo relies on LVR (at [90]-[92] and [142]), where the Full Court said:

90        The principles that have been applied are that at a general level there is no legal error in the use of standard paragraphs. As a matter of the quality of decision-making, some courts have indicated it is preferable or desirable not to use such paragraphs. Where the paragraphs in question relate to the individual circumstances of an applicant, particularly a person’s credibility, then closer scrutiny of a decision which contains standard paragraphs is appropriate and necessary to determine whether the tribunal has discharged its statutory function and exercised its jurisdiction to review the decision before it. It is permissible to use standard paragraphs as a guide but not so as to seek to cloak the decision with the appearance of legality.

91        In our view, speaking generally, it is more appropriate to consider these matters by reference to whether or not the tribunal has discharged its statutory role, its jurisdiction to review the decision before it, rather than to approach it by reference to procedural fairness or the inflexible application of policy or acting under dictation. In our view the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task. In a particular case it may also be that adopting submissions has the consequence that the tribunal has failed to disclose its reasoning.

92        In relation to template or standard paragraphs, relevant to the question, to be answered objectively, whether or not the decision-maker has performed its allocated task will be the following:

(i)    the function of the decision-maker and the source of that function;

(ii)    the source of the copied material;

(iii)    the subject-matter of the copied material;

(iv)    whether the copied material was controversial;

(v)    the similarity of the claim to the claim from which the material was copied;

(vi)    the extent of the copying;

(vii)    whether the copied material was up to date;

(viii)    whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and

(ix)    whether the fact of copying and the source of the copied material was acknowledged.

…

142        In Rezaei [v Minister for Immigration and Multicultural Affairs [2001] FCA 1294], Allsop J said Yusuf [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323] did not stand for the proposition that merely because some piece of evidence which the court thought was relevant in the evidential or probative sense could be seen not to have been weighed or discussed, a relevant consideration had not been taken into account and the decision-maker thereby had failed to embark on or complete his or her jurisdictional task. “Relevant” for this purpose meant that the decision-maker was bound by the statute or by law to take this into account. We agree, but that principle does not touch the present case where the appellants’ response to an application for dismissal of the proceedings was not taken into account and the decision-maker thereby failed either to embark on or to complete his jurisdictional task.

49    In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J considered the circumstances where a failure to consider each relevant matter will amount to a failure by the Tribunal to discharge its statutory role and a constructive failure to exercise jurisdiction. Her Honour said (at [24] and [35]-[39]):

24    I am not satisfied that the failure of the Tribunal to perform the task it was obliged by para 13.2(1) of the Direction to perform is a failure which was insufficiently material to the outcome of the merits review to justify refusal of relief. I am also not satisfied that read in the context of the Tribunal’s other findings, the error (characterised – as the Minister accepted – as a failure to perform a task required of it by the Direction) is not jurisdictional in nature.

…

Why the error is jurisdictional

35    In my opinion this error is jurisdictional in nature. Non-compliance with the terms of the Direction, read with the obligation in s 499(2A) imposed on the Tribunal, have been seen in decisions in this Court as capable of resulting in jurisdictional error. In Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [22]-[44], I examined the legal character of Ministerial Directions made pursuant to s 499, although in those reasons I discussed some aspects of their legal character without determining those matters (but see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [54] where Robertson J decided that Direction No. 65 is not a legislative instrument). What I did note, at [34]-[35], was that a number of decisions of this Court have accepted that non-compliance with a provision in a s 499 Ministerial Direction can constitute jurisdictional error. All the decisions to which I referred in those paragraphs dealt with predecessor directions to Direction No. 65. In Williams and most if not all of the decisions to which I referred, different parts of the applicable Ministerial Direction were in issue, as the underlying power was located in s 501 of the Migration Act. However, the predecessor directions, like Direction No. 65, replicated similar decision-making constraints for each of the powers covered by Parts A, B and C of the Direction.

36    Since Williams there have been other similar statements made: Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [31] (Burley J); Uelese at [55].

37    I noted also at [42] of Williams, that arguments that directions in the nature of Direction No. 65 constitute an unlawful fetter on a discretion conferred in unconfined terms by the Migration Act itself have met with mixed results. No such argument was made here, so there is no occasion further to examine those authorities.

38    As to the cases in [34]-[35] of Williams, neither party in this application referred the Court to those authorities, or any more recent cases along similar lines, although they are of some relevance. For example in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504, the Full Court decided by majority (Buchanan and Perry JJ, Barker J dissenting) that, in the particular circumstances of its review of a cancellation decision, the failure by the Tribunal to make a determination whether cancellation was in the best interests of the children affected was not erroneous at all, let alone erroneous in a jurisdictional sense. The Minister did not make any such argument on this appeal. He accepts there was some material before the Tribunal, although he contends it was limited, and not emphasised or developed by the applicant or his legal representative before the Tribunal. And unlike Paerau, this was not a review decision affected by the terms of s 500(6H) because it did not involve an exercise of power under s 501.

39    In my opinion, aside from the kind of circumstances which arose in Paerau (and which, like Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, were also affected by the operation of s 500(6H) of the Migration Act), the trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) (and subject to any validity issues about a particular Direction), a failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision-maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction. Put another way, where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision-maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act (here, s 501CA(4)): see generally Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76]. I emphasise that this analysis assumes, rather than decides, that a Direction made under s 499, such as Direction No. 65, is capable of imposing on decision-makers the kind of mandatory obligations it purports by its language to do, by (for example) making certain matters mandatory considerations and requiring decision-makers to determine certain matters. The larger question of whether a s 499 Direction can achieve this result in relation to a wide statutory discretion, is the one I left open in Williams, and as far as I am aware, it has not been finally determined in this Court, or by the High Court (but see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [77], cf Jagroop at [78]).

50    It is certainly the case that in LVR the Court was critical of the Tribunal’s unattributed reproduction of the submissions of the Commissioner of Taxation regarding a hearing held in relation to the dismissal of an application for failing to comply with a direction of the Tribunal. It is common ground, however, that the matter was not actually determined on that basis, but rather, the Court was not prepared to infer that the Tribunal had considered an affidavit filed in support of the application in circumstances where no reference was made to it in the reasons. In LVR, it was observed that the extensive copying of submissions may lead to a conclusion that there has been a constructive failure on a decision made to carry out its statutory task. But this will not always be so necessarily. See, for example, the discussion in Beaman v Bond [2017] FCAFC 142 per McKerracher J (with whom Gilmour and Charlesworth JJ agreed) (at [67]-[68]), although it must be noted that these remarks were clearly obiter as the appellant had not expressly pursued that ground of appeal. The view I expressed in Beaman was that it was important that the parties be satisfied that an independent mind has been brought to bear on the debate. As I noted in Beaman, this confidence may be displaced if one is left with an impression that arguments have been embraced without serious consideration either to the contrary point of view or the application of an independent point of view.

51    A most helpful analysis on this topic appears in Juneja v Tax Practitioners Board (2017) 72 AAR 407, where Besanko J said (at [84]-[93]):

84        The applicants put their submission in the following way. Both parties prepared closing written submissions and put those submissions before the Tribunal. The applicants submitted that the Tribunal copied and included in its reasons, large parts of the respondent’s closing written submissions. The copying was not limited to background facts, but included key findings and conclusions of the Tribunal. The applicants put forward a table showing paragraphs in the Tribunal’s reasons and their counterparts in the respondent’s closing written submissions. That table is set out below. For its part, the respondent, for the assistance of the Court, provided a copy of the Tribunal’s reasons with additions and deletions, including paragraph numbers, which showed where the Tribunal’s reasons correspond or do not correspond, as the case may be, with the respondent’s closing written submissions.

85        The applicants submitted that the greater part of the Tribunal’s reasons consist of “the mostly uncritical adoption by the Tribunal of the Respondent’s submissions, copied verbatim”. The applicants submitted that this is “particularly concerning where it relates to key issues and adverse findings made against the Applicants” and that the Tribunal’s approach casts “serious doubt upon whether the Tribunal engaged in the active intellectual process necessary for the exercise of the jurisdiction reposed in it”. In oral submissions, the applicants went further than a claim of a serious doubt and submitted that the Tribunal had not exercised the jurisdiction reposed in it. The applicants referred to the decision of the Full Court of this Court in LVR v AAT.

86        There is very little authority on the point in issue. There are cases where an applicant has claimed that a Tribunal did not carry out its review function because it used standard paragraphs, that is to say, paragraphs found in other Tribunal decisions (WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362). That is not this case. There is, of course, the principle that the decision-maker must give genuine consideration to the issues he or she is required to address (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J). Extensive copying may reflect a failure to discharge that obligation. There are cases where an applicant has claimed that a lower court has simply copied the submissions of one of the parties and, therefore, not provided adequate reasons or carried out its function properly (Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407). Again, that is not this case because, as the Full Court noted in LVR v AAT at [81] and [98], the respective positions of Courts and Tribunals differ. The closest authority to which I was referred was, in fact, LVR v AAT. Even that case does not provide binding guidance, in that the actual basis of the decision was that the Tribunal’s decision should be set aside because the Tribunal had failed to take into account a relevant consideration, namely, the applicants’ explanation for their failure to comply with the Tribunal’s directions. The Court did discuss the issue at length, but expressly said that it was not deciding the case on that basis (at [5]). Nevertheless, the decision is, with respect, helpful because it indicates that extensive copying of a party’s submissions may lead to the conclusion that there has been a constructive failure by the Tribunal to exercise its jurisdiction whether that is because the Tribunal has failed to disclose its reasoning or otherwise (at [91]). The decision is also helpful because it identifies some of the matters which are relevant in terms of assessing the significance of copying. They include the extent of the copying, the extent of attribution, if any, and the significance of what is copied, ranging from an undisputed fact at one end of the spectrum, to core reasoning at the other end of the spectrum.

87        The Tribunal’s reasons consist of 62 paras which may be broadly divided by reference to the headings into the following: Introduction (paras 1 to 2 inclusive), Material Background (paras 3 to 28 inclusive), Legal Framework and Legislation (paras 29 to 31 inclusive), Relevant Policy (paras 32 to 34 inclusive), Issues (paras 35), Relevant Cases (paras 36 to 39 inclusive), (and ignoring subheadings for present purposes) Consideration (paras 40 to 60 inclusive), Conclusion (para 61) and Decision (para 62).

88        The applicants’ table was as follows:

    …

89        By and large, this table is a fair representation of what has occurred. I say “by and large” because one might argue about one or two of the entries and the extent to which it is appropriate to describe the reproduction as substantively identical on the one hand, or similar or very similar on the other. The comparison suggests that the Tribunal accepted the respondent’s statement of the relevant facts and, as to the critical matters of competence, character and contrition, it accepted the respondent’s submissions, on a number of occasions, using the same phraseology. I do not know how the Tribunal prepared its reasons. However, it seems reasonable to infer that the Tribunal accepted the factual background outlined by the respondent and simply repeated it and then worked its way through the respondent’s submissions in preparing its reasons. That does not mean that it did not consider the applicants’ case or engage in an active intellectual process in accepting the respondent’s submissions.

90        In addition, the following matters are to be noted.

91        First, many of the factual matters stated by the Tribunal were either expressly not in dispute or were not reasonably capable of being disputed. Apart from the alleged telephone call on 13 June 2013, I cannot see anything in the matters in the sections headed Introduction and Material Background which were or could be seriously in dispute. I say that, having regard to the material before the Tribunal and this Court, in particular, the Respondent’s Statement of Issues and the applicants’ response to that document. There was nothing contentious in this case about the matters in the sections headed Legal Framework and Legislation, Relevant Policy and Relevant Cases. As to the Statement of Issues, the Tribunal’s reasons reflected the issues which the parties agreed before the hearing were the issues. In my opinion, in the ordinary case at least, it would be prudent, not a matter for criticism, to state the issues in terms of the parties’ agreement as to the issues. The “lack” of attribution is of no significance in this context.

92        Secondly, the Tribunal did, from time to time in its reasons, refer to submissions of the applicants and did acknowledge that it was repeating or summarising or referring to a submission made by either the applicants or the respondent. In that section of the reasons appearing under the heading Consideration, there are the following subheadings: Competence (paras 41 to 46 inclusive), Character (paras 47 to 53 inclusive), Contrition (paras 54 to 58 inclusive), and the Board’s Submissions (paras 59 to 60 inclusive). In considering competence, the Tribunal referred to a submission of the Board and a submission of the applicants (para 46). In considering character, the Tribunal referred to three submissions of the Board, the fact that counsel for Mr Juneja did not cross examine on a particular topic and a submission by the applicants (at [52]-[53]). In considering contrition, the Tribunal referred to the Board’s submissions on four occasions ([55], [56] and [58]) as well as in its concluding paragraphs ([59] and [61]).

93        Thirdly, the Tribunal, whilst repeating a number of the respondent’s submissions, did not simply adopt or copy all of the respondent’s submissions. Some examples will suffice. The Tribunal in paragraphs 41 to 44 inclusive of its reasons reproduce a number of the statements in paras 57 to 67 inclusive of the respondent’s written submissions, but did not include para 60, part of the last sentence in paragraph 59, and the first sentence in paragraph 61 and the changes made by the Tribunal to paras 68 to 70 inclusive of the respondent’s written submissions as reflected in paragraphs 45 and 46 inclusive of its reasons. Another example is to compare para 55 of the Tribunal’s reasons with paras 89 - 91 of the respondent’s closing written submissions:

55    The Board has submitted (and I further agree) that the Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder, but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan and/or other former staff members of Cudmores. Given what is stated at paragraph 42 above about the Applicant’s duties as a director of Cudmores, the Board further submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores, particularly after he became its sole director on 12 January 2011. (Emphasis added [in original].)

[…]

89    The Individual Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan, Ms Curnow and/or other former staff members of Cudmores.

90    In Re and Tax Agents’ Board SA (1982) 13 ATP 192, Cook J relevantly stated (at pp 196-197):

The failure to lodge his personal income tax returns and the failure to pay on time the group tax instalments suggests incompetence on [the agent’s] part. In his evidence before me, [the agent] placed the blame on other persons …

… [The agent] has laid the blame upon other persons in his practice. But all these matters were matters with respect to which [the agent] had ultimate responsibility and the duty to take a personal interest. The problems that arose reflect upon his competence.

91    Given what is staged at [62]-[64] above about the Individual Applicant’s duties as a director of Cudmores, the Respondent submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores - particularly after he became its sole director on 12 January 2011.

The comparison reveals that in para 55 of its reasons, the Tribunal has acknowledged the source of the submissions and has not included para 90 of the respondent’s submissions.

52    Adopting a similar exercise in this case, there are of course many paragraphs of background facts recitation and statements of the law about which, for the most part, no complaint or contest is made or is open. However, some of the content is more sensitive particularly the description or characterisation of the facts. For example, Mr Rodchompoo takes issue with the Tribunal’s description of his criminal record as ‘an extensive criminal history’, an expression used by the Minister. Mr Rodchompoo emphasises although there were ‘a vast range of offences between 1999 and 2015’, what was important is that there were eight convictions for possession of cannabis and no history of selling and supplying cannabis. Further, objection was taken to the Tribunal adopting the Minister’s submission that the offences for which Mr Rodchompoo was convicted are ‘clearly serious’. In this, and a number of other instances, the expression ‘the respondent contends’ was replaced with ‘the Tribunal considers’. This extended to the specific paragraphs extracted from the Court Book where there were statements made by magistrates or judges in regards to Mr Rodchompoo’s sentencing, even adopting a typographical error as to the name of the one of the magistrates contained in the Minister’s SOFAC.

53    Objection is taken to the exclusion of the fact (in contrast) of a sentencing remark from Scott DCJ to the effect:

You pleaded guilty at the earliest opportunity and are entitled to a discount for that plea. As to remorse, you pleaded guilty. I accept it means you accept the unlawfulness of your conduct.

54    At the conclusion of the Tribunal’s reasons, what was deleted from the Minister’s SOFAC was ‘[t]he respondent contends that the Tribunal should conclude that having’, while what was inserted by the Tribunal was:

Having considered and weighed all the primary considerations and other relevant considerations required to be taken into account by the Tribunal under [the Direction] and the available evidence …

55    Mr Rodchompoo points to this as being copied from [8] of the Minister’s SOFAC, which was deleted in the Tribunal’s reasons and moved to the end. Mr Rodchompoo emphasises that the decision given by the Tribunal was on 4 November 2016, the hearing being on 2 November 2016, with over 300 pages of Court Book and an hour and a half approximately of oral hearing.

56    Mr Rodchompoo also relies upon MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154, a Full Court decision (Tracey, Murphy and Mortimer JJ) in which the Federal Circuit Court had remitted a matter to the Refugee Review Tribunal for reconsideration for reasons of jurisdictional error by the original Tribunal. The decision of the second Tribunal, however, affirmed the earlier Tribunal’s decision, but the Full Court noted that many passages in the second Tribunal’s decision were identical, or identical except for minor syntactical modifications, to passages contained in the first Tribunal’s decision. At [58]-[59], the Full Court said:

58        The emphasis of the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32] that a tribunal on review must consider “for itself” whether it is satisfied a person meets the prescribed criterion for a protection visa is, with respect, an appropriate emphasis. The nature of the task was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [71]-[73]:

“In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.

The Tribunal’s written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf, where six members of the Court held that the Act’s requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought processes of the Tribunal, not some objectively determined set of “material” facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made.

Necessarily, the findings that are recorded in the Tribunal’s written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.”

    (Emphasis added; citations omitted [in original].)

59        It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.

57    In Mr Rodchompoo’s hearing before the Tribunal he was ‘represented’ by his sister, but a reading of the transcript reveals that, of course, in the absence of legal training, she was limited in her capacity to assist.

58    It appears to be common ground that the treatment of the further amended grounds of Mr Rodchompoo’s application may throw light on the extent to which the Tribunal merely adopted the Minister’s SOFAC without due consideration or whether it is sufficiently apparent from considering the Tribunal’s submissions that it did genuinely apply an independent mind to the matters as they came before the Tribunal.

59    There are, it is most important to recall, a number of difficulties faced by a Tribunal in a matter such as this. The first difficulty is that the grounds of review brought to the Tribunal by an unrepresented individual with limited education are hardly likely to throw up particularly helpful arguments, at least on technical matters. It is not as though the Tribunal had the considerable assistance, which I have had, of sophisticated arguments of pro bono solicitors and experienced counsel.

60    Secondly, the Tribunal deals with a great number of migration matters (literally in the tens of thousands). More specifically, in relation to migration matters arising under s 501 of the Migration Act, there are over a thousand published decisions of the Tribunal. It is inevitable in such high volume matters that there will be an interplay between the submissions to the Tribunal and the decision by the Tribunal, not simply because the Tribunal copies the submissions, but because, as occurs in this Court, submissions are prepared with considerable regard to the previous decisions by the Tribunal. In addition to citation of uncontested facts there is, in all such matters, reliance on well recognised and repeated expressions from the various legal authorities that consider the relevant provisions from time to time. To not cite such material in submissions/reasons can give rise to other criticisms. Further, very often, at least in Western Australia, submissions are being considered by the same Tribunal member. A substantial portion of the material which will appear in submissions has to appear in submissions and has to appear in the reasons. There are only a certain number of ways certain things can be said. As the Minister contends, there are only so many ways you can restate well known principles, but which principles must be stated in the decision.

61    One of the difficulties in this particular instance, however, is that before the Tribunal there was what might be described as a plea in mitigation which to some extent reflects the submission first made in this Court. There is a complaint that the Tribunal failed to properly assess the severity of the offences. But there was very little the Tribunal could say about such a submission.

62    In the present case, subject to the discussion raised in this appeal, it is difficult to identify any substantive additional material which can be contended that the Tribunal should have seriously evaluated and analysed. In contrast, in LVR there was substantially more material than in the present case – some 77 lever arch files of material filed. In LVR (at [88]), their Honours noted that different and more benign considerations arise with respect to the copying of common form material in high volume decision-making in relation to many similar claims, providing always that it is evident that this has not been done to the exclusion of a consideration of the merits of an individual case. LVR was not a high volume case, as this case was.

63    In that regard, as noted by Besanko J in Juneja (at [47]), the applicant must establish first that the Tribunal overlooked the evidence (or in that case the inference of competence which might be said to arise from the evidence) and, secondly, that this oversight amounted to an error of law. His Honour also cited Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 where the Full Court (French, Sackville and Hely JJ) onousaid (at [46]-[47]):

46        It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47        The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(Emphasis added.)

64    Besanko J also noted in Juneja that overlooking certain evidence does not of itself amount to an error of law. It might have meant no more than that the Tribunal committed an error of fact or some other failing not amounting to a failure to take into account a relevant consideration or asking itself the wrong question: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97] per McHugh, Gummow and Hayne JJ and LVR (at [143]-[144]). In contrast, a Tribunal might reach a conclusion that it was reasonably open to make a finding when it was not so open: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 (at [217]).

65    In the present instance, although Mr Rodchompoo certainly had something to say about why he pleaded guilty to the offence of possession with intent to sell, otherwise he had filed no written submissions, no witness statements and no supporting evidence. There was nothing in his materials which was capable of addressing the considerations that are set out in the Direction. As the Minister contends, while Mr Rodchompoo’s opening and concluding submissions to the Tribunal were no doubt heartfelt, they were not directed to those considerations the Tribunal was required and empowered to address or take into account. There was little or nothing in the content of those submissions which directly addressed the required primary considerations as identified in the Direction, such as the protection of the Australian community, the expectations of the Australian community and the risk of recidivism. It can be accepted that they did have some relevance to the connection of ties within Australia.

66    But even accepting that there is significant replication of the Minister’s SOFAC, nonetheless, there are, as there were in Juneja, indications that the Tribunal specifically considered the evidence from Mr Rodchompoo, including evidence given in cross-examination. The conclusions were not all favourable by any means to Mr Rodchompoo, but nonetheless it is apparent that the evidence on the cross-examination was considered. This crucial content, necessarily, was not part of the SOFAC. It is Mr Rodchompoo’s own evidence at the Tribunal hearing that appears within the Tribunal’s reasons, which supports a conclusion that the Tribunal considered his arguments and reached its own determination. At [37], [43], [54] and [62]-[63], the following matters are set out:

37.    It is clear to the Tribunal, and by his own admission, Mr Rodchompoo’s offending relates to his drug addiction. There is no evidence before the Tribunal of any serious attempts by Mr Rodchompoo to rehabilitate himself. In any event, the fact that Mr Rodchompoo has been convicted recently for drug offences suggest that little has been done to address his addiction …

…

43.    At the hearing of this application, during cross-examination, Mr Rodchompoo was asked by the Minister’s representative to describe, in his own words, the circumstances of his offending in relation to a number of separate convictions. On each occasion, Mr Rodchompoo sought to minimise his involvement in the offending, seeking to impute blame onto the person(s) he was with at the relevant time, stating that he was simply "in the wrong place, at the wrong time". This demonstrates that Mr Rodchompoo has failed to take ownership of and personal responsibility for his offending, demonstrating that Mr Rodchompoo is far from rehabilitated and is extremely likely to re-offend if he is allowed to remain in Australia.

…

54.    Mr Rodchompoo has been ordinarily resident in Australia since arriving at the age of 13 in 1993. His immediate family (namely his Mother … , his brother … , his sister … and his other brother …) reside in Australia. Mr Rodchompoo claims to have worked, albeit to a limited degree, in Australia for "Honbits Australia, Plant Supply, Ace Auto and CTP Export".

…

62.    Prior to moving to Australia at the age of 13, Mr Rodchompoo lived with his grandfather and uncle in a small village in Thailand. Mr Rodchompoo’s grandfather and uncle are now both dead and he does not know whether his uncle has any remaining family in Thailand. The Tribunal acknowledges that Mr Rodchompoo may experience some hardship as a consequence of moving to Thailand, particularly given he has not returned to Thailand since the age of 13 and claims that he cannot speak or write Thai. However, Mr Rodchompoo told the Tribunal that he did speak Thai before he moved to Australia (at the age of 13) and that it is possible that he could learn to speak it again.

63.    The Tribunal also acknowledges that there is some evidence in the sentencing remarks that Mr Rodchompoo has complex mental health issues and he may have access to a superior health system in Australia in this regard.

(Emphasis added.)

67    These extracts support a conclusion that the Tribunal independently considered the matters put before it, even though it preferred the Minister’s contentions in relation to the evidence given by Mr Rodchompoo. This was in the context in which Mr Rodchompoo had failed to put forward a proper case, not only at a technical level, but also by failing to comply with the direction made by the Tribunal that he file a Statement of Facts, Issues and Contentions and any further evidence. Also, as previously noted at the hearing itself, no substantive assistance directed to the proper legal considerations was made available by Mr Rodchompoo to the Tribunal.

68    For completion, I note at this point (and later discuss) a further complaint that the Tribunal failed to render sufficient assistance to Mr Rodchompoo who was, for practical purposes, unrepresented.

69    It is well recognised that the Tribunal should expect a government respondent to assist it in reaching the correct or preferable decision. The government has a specific role to ensure that the Tribunal does not proceed in a direction which is not supported by statute and authority.

70    It is easy to be dismissive about a summary statement that the Tribunal had ‘considered and weighed all the primary considerations and other relevant considerations’, but the Tribunal has a sworn duty to carry out its task properly. Its reasons should be examined without an eye keenly attuned to error. In a case such as the present, it is not unreasonable to take such statements by the Tribunal at face value. Were the remaining grounds of review to reveal errors or omissions in the task carried out by the Tribunal, such revelation may support a suggestion that the Tribunal had failed to exercise its jurisdiction by failing to properly consider the matters it was required to consider, but in the circumstances set out above and absent a favourable answer for Mr Rodchompoo on the remaining grounds, I would not consider that ground 1(aa) could be established.

Ground 1(a) - the Tribunal failed to make reasonable inquiries

71    A failure to make reasonable inquiries may constitute jurisdictional error on two different bases. First, to do so may be unreasonable or, secondly, it may be a constructive failure to exercise jurisdiction. In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) noted (at [20]) that the failure of an administrative decision-maker to make an inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power as being so unreasonable that no reasonable person would have so exercised it. The High Court further noted (at [25]) that this may extend to a failure to make an obvious inquiry about a critical fact, the existence of which can be easily ascertained. Such a failure may constitute a failure to review, giving rise to jurisdictional error by constructive failure to exercise jurisdiction.

72    In the present case, Mr Rodchompoo contends that the Tribunal failed to inquire into the extent of the impediments to him if he was removed, in circumstances where it acknowledged (at [63]) that he suffered from complex mental health issues. At [64], the Tribunal concluded that, nevertheless, Mr Rodchompoo, as a citizen of Thailand, would have the same access to services as any other citizen of Thailand.

73    The extent of impediments if removed is a compulsory consideration by reference to cl 14(1)(e) of the Direction. Specifically, pursuant to cl 14.5 of the Direction, the extent of impediments that a non-citizen may face if removed from Australia to his or her home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), is to be assessed by taking into account the non-citizen’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to them in the country.

74    Mr Rodchompoo emphasises the terms ‘basic living standards’, ‘health’ and ‘medical support’ appearing in cl 14.5 of the Direction. He stresses that the Tribunal had before it evidence that he was currently the subject of a psychiatric alert and the various acknowledgements that he had unmet needs for treatment and rehabilitation whilst in prison. He submits that the clear evidence before the Tribunal was that he had lived in Australia for 23 years, now 25 years, did not have a passport or travel identity documents, did not speak Thai and did not have any family or friends in Thailand. Yet the Tribunal, it is argued, failed to inquire into the medical services which would be available to him in Thailand as a person who requires essential medication, rehabilitation for his drug addiction issues and assistance with his complex mental health issues.

75    From the evidence filed in support of his application, it is argued that information readily available on the internet states that in Thailand:

(a)    in 2010, 60% of drug users were treated in compulsory treatment centres run by the military, which remain in operation as at the date of the Tribunal’s decision;

(b)    there is no attempt to address the underlying problems that perpetuate the addiction or offer any real psychological or pharmacological treatment at these centres;

(c)    treatment for drug use remains limited and of poor quality; and

(d)    there have been reports of cruel, inhumane and degrading punishment within such centres.

76    Additionally, it is argued that the publicly available information suggests that a Thai identity card is required for any citizen in Thailand to be able to access such health services.

77    It is contended that if the Tribunal had inquired about these readily available facts regarding the requirements for accessing healthcare services in Thailand, it would have been clear to the Tribunal at the time of making its decision, that Mr Rodchompoo may not have had the same access to health services as another citizen of Thailand due to his lack of identification documents. It is said that this failure to inquire about Mr Rodchompoo’s ability to access healthcare in Thailand and the nature of the healthcare provided to persons with those medical issues suffered by the applicant, in circumstances where the Tribunal was required by the Direction to take into account the extent of the impediments facing Mr Rodchompoo if removed, was unreasonable given the readily accessible nature of the information.

78    The Minister has not objected to the tender of the information setting out the available health needs in Thailand as is described in the internet searches obtained on Mr Rodchompoo’s behalf. The contention is that the Tribunal should have conducted its own internet searches on these matters or should have requested the Minister to provide evidence as to what treatment and support would be available for Mr Rodchompoo in Thailand.

79    There is a second issue in respect to which there is a complaint about failure to inquire, and that is the circumstances leading to Mr Rodchompoo having pleaded guilty to possessing cannabis and methylamphetamine in 2015 and the purported risk posed to the Australian community. At [60], the Tribunal made it clear that there was no evidence of the impact on any victims, however, given that Mr Rodchompoo had ‘a history of convictions for supplying drugs in Australia’, it was concluded that his removal from Australia would diminish the harm which flows from such conduct. It is argued that the Tribunal’s finding that there was a ‘history’ of convictions for supplying drugs was contrary to the evidence before the Tribunal because, until 2015, all of Mr Rodchompoo’s convictions related only to possession. In relation to the plea of guilty for possession with intent to sell or supply, it is stressed that Mr Rodchompoo’s evidence before the Tribunal was that the amount in possession was only 15 grams of cannabis and 0.7 grams of methylamphetamine. There was no evidence before the Tribunal that Mr Rodchompoo had in fact sold drugs to any member of the Australian community. It is said that it is not an instance where he is an importer of large amounts of drugs, nor a dealer seeking to profit from drugs. Rather, it is contended that ‘[t]he only evidence before the Tribunal was that [Mr Rodchompoo] was feeding his own drug addiction’. It is said that the Tribunal’s conclusion is unreasonable. At [65], the Tribunal concluded:

Having considered and weighed all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65 and the available evidence, the Tribunal finds that the correct and preferable decision is that the mandatory cancellation of Mr Rodchompoo’s visa should not be revoked. The Australian community is entitled to be protected from the very high risk that Mr Rodchompoo will continue to commit serious offences if he is allowed to remain in Australia, this risk is unacceptable and is not outweighed by considerations favourable to Mr Rodchompoo.

(Emphasis added.)

80    For Mr Rodchompoo, it is submitted that despite being advised during the hearing on 2 November 2016 of the amounts of the drugs involved, the Tribunal failed to inquire of Mr Rodchompoo:

(a)    why, in 2015, he pleaded guilty to charges of possessing drugs with intent to sell and supply;

(b)    whether he received any advice at the time in regard to his plea and, if so, who provided that advice; and

(c)    whether he understood the effect of pleading guilty to the charges at that time.

81    It is submitted that the answers to those inquiries may have materially affected the Tribunal’s decision, particularly given the Tribunal acknowledged that there were considerations favourable to Mr Rodchompoo’s position.

82    I do not consider in the circumstances of this case that it is possible to establish ground 1(a). There is no doubt that the Tribunal does have the power to obtain information, but equally the Tribunal does not have an obligation to make its own inquiries in order to make the applicant’s case for him or her, or to investigate claims made by the applicant (not that the impediments argument was made by Mr Rodchompoo before the Tribunal). What the Tribunal does have an obligation to do is to consider certain matters. It is clear in this instance that it did consider and form a view about whether or not Mr Rodchompoo would have access to health services in Thailand. However, as noted in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 per Kenny J (at [60] and the cases therein cited), an obligation to make further inquiries which would support an applicant’s case would only arise in ‘rare or exceptional circumstances’. Le was one of those ‘rare or exceptional cases’ (at [77]). In that case, Kenny J found the Tribunal breached its obligations to make further inquiries where the inquiries were not difficult to make, the Tribunal ought to have known they might readily be made and, presumably, they would have yielded at least some relevant information on issues that were plainly critical to the Tribunal’s review (at [78]). The Tribunal’s failure to make inquiries as to the applicant’s interview process before the delegate, a straightforward inquiry for information that was apparently readily available and relevant to critical issues, was considered by Kenny J to constitute legal unreasonableness (at [79]).

83    In short: first, the inquiry the Tribunal failed to make must be obvious; secondly, the inquiry must concern a critical fact, the existence of which was easily ascertained; and thirdly, the inquiry must supply sufficient a link to the outcome as to constitute a failure to review. The fact that it may have been reasonable to make an inquiry does not suggest that a lack of such an inquiry amounts to jurisdictional error. In relation to the failure to inquire into the extent of impediments, into the plea of guilty and into other ‘obvious’ matters, these were not easily ascertainable facts. Rather, they are inquiries into matters which would make Mr Rodchompoo’s application for him. There is not a duty to make such inquiries: Toura v Minister for Immigration and Border Protection [2017] FCA 1405 per Logan J (at [13] and the cases therein cited).

84    Mr Rodchompoo’s suggestion that the impediments in obtaining healthcare in Thailand is an easily ascertainable fact must be rejected. The existence of opposing views on the internet is hardly sufficient to warrant reversing a finding of fact that he would be in the same position as other citizens of that country. Doubtless there are arguments for and against standards and quality of health care in other countries just as there are in Australia. No doubt the government maintains that the services it provides are quite adequate. How the Tribunal could ‘easily ascertain’ the answer to such facts is quite unclear.

85    Similarly, in relation to the real reason Mr Rodchompoo pleaded guilty to the charges of possession with intent to supply drugs, this cannot be described as an easily ascertainable fact. For the Tribunal to go behind Mr Rodchompoo’s plea of guilty and his convictions, would be contrary to authority: see, for example, Wittensleger v Australian Securities and Investments Commission [2017] FCA 41 per McKerracher J (at [49]). In Wittensleger (at [18] and [49]), I said:

18    The Tribunal took the approach that it could not go behind a conviction and examined the facts on which it was based, following earlier decisions of Minister for Immigration & Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Commissioner of Taxation (1991) 30 FCR 578.

…

49    … In any event, it is plain that the information which Mr Wittensleger would seek to adduce by this additional evidence, if an opportunity to produce it were made available, goes directly to the very foundational facts underlying the convictions in the District Court. It is undoubtedly the case that Mr Wittensleger seeks to controvert the essential facts giving rise to his original convictions. The intended use of the documents on this application (if leave is granted) seeks to ‘go behind or otherwise challenge’ the essential facts giving rise to the conviction. This is directly contrary to the well-established principle in a number of cases including Gungor, Daniele and Saffron.

86    No doubt Mr Rodchompoo would have said, had the Tribunal made inquiry about why he pleaded guilty, that:

    he did not intend to sell the drugs;

    the $1,025 he had received was not from sale of drugs; and

    he only pleaded guilty because he understood he would receive a lower sentence and that the time already served at the date of the plea would enable his release.

These were essentially the things that he told me on the first day of the hearing. But, what was the Tribunal to do armed with this information? Even if it accepted it, and it is difficult to see how it could do so in the face of the authorities and in the face of the plea, accepting those facts would not have had an effect on the criteria prescribed in the Direction. There was nothing in the process itself which was rare and exceptional and which would impose upon the Tribunal, in the Le sense, an obligation to make further inquiries. There was nothing rare or exceptional about the matters raised by Mr Rodchompoo which would trigger such an obligation. Such matters are raised quite frequently in applications of this nature.

87    In my view, the Minister is also correct in pointing out that the merits review regime for decisions to not revoke a cancellation decision differs from merits review in the migration division of the Tribunal. In this instance, Mr Rodchompoo had specifically been directed to file and serve any further evidence on which he intended to rely. In fact it was open to the Tribunal to dismiss the application for non-compliance without a hearing, but it did not take this course. In substance, what he seeks now to do is to challenge the merits of the Tribunal’s decision on this topic, which is an impermissible form of review.

Ground 1(b) - the Tribunal failed to take mandatory relevant considerations into account

88    In this regard, Mr Rodchompoo relies, again, on the failure to take into account the extent of any impediments he may face if removed from Australia to Thailand and also the failure to take into account his rehabilitation treatment. Of course, a failure to take into account a relevant consideration or ignoring relevant material which one is obliged to take into account may constitute jurisdictional error in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (at 39-40, 45). Mr Rodchompoo refers to an 18 June 2016 facsimile sent from the Christmas Island in which he said that:

I admit my wrong doing and I am using my time in detention to seek help from IHMS and the cousellor [sic] to help me to be a better person. … If I do get my visa back I will continue to get consellor [sic] for my alcohol and drug addiction.

89    The contention is that, although the evidence up until 2015 was that the rehabilitation had not been successful, by June 2016, when this facsimile was sent, the most relevant evidence before the Tribunal from Mr Rodchompoo was that he was seeking help and counselling. However, no question was put to him during the Tribunal hearing about his current status and about seeking help and counselling from IHMS. It is contended that if such a question had been put to him on 2 November 2016 during the hearing, after over 18 months in detention on Christmas Island, it might have made a difference to the Tribunal’s conclusion that there was no evidence of Mr Rodchompoo’s rehabilitation, as stated at [37]-[38] and [40] of its reasons, which are as follows:

37.    It is clear to the Tribunal, and by his own admission, Mr Rodchompoo’s offending relates to his drug addiction. There is no evidence before the Tribunal of any serious attempts by Mr Rodchompoo to rehabilitate himself. In any event, the fact that Mr Rodchompoo has been convicted recently for drug offences suggest that little has been done to address his addiction….

38.    The Courts have also expressed pessimism in relation to Mr Rodchompoo’s addiction and commitment to rehabilitation. Magistrate Langdon, in relation to the offences of 8 September 2015, stated:

I have determined that in the light of your record where you have repeatedly been misusing drugs, you have a number of convictions for drug use, that - and in light of your lifestyle issues I don’t have any confidence at this stage that you would be able to comply with a community order and I’m not prepared to waste the court’s resources and simply set you up to fail on such an order.

…

40.    This pessimism has been echoed by the Prisoners Review Board of Western Australia who, on 21 October 2015, denied Mr Rodchompoo release on parole for the following reasons:

1.    Your unmet treatment needs (substance abuse, violence and consequential thinking) as evidence by the current offences, your significant court history and unsatisfactory prison behaviour (charges received in July 2015 relating to diverting medication and assaulting another prisoner). The Board notes that you have not been assessed for intensive treatment intervention due to the backdating of your sentence.

2.    Insufficient protective strategies to support release to the community. The Board notes that you have significant mental illness and require a release plan to support the management of this.

90    Mr Rodchompoo also argued that the Tribunal failed to consider the likelihood of further criminal conduct in circumstances where the Mr Rodchompoo was now receiving treatment for his drug and alcohol addictions, whereas he had not previously been able to access (or afford) such treatment. In support of the contention of the materiality of such a failure, Mr Rodchompoo points to the Tribunal’s findings (at [45]) that the consideration of Mr Rodchompoo’s likelihood of further criminal conduct ‘should weigh significantly and determinatively in favour of non-revocation of Mr Rodchompoo’s visa’.

91    In my view, these complaints essentially fail for the same reasons. Insofar as the impediment issue is concerned, it was for Mr Rodchompoo to present his submissions and evidence consistently with specific directions made to that effect. Yet the only material pointed to is the extract from the facsimile. There is no doubt that the Tribunal considered the question. Mr Rodchompoo’s real complaint is that he is dissatisfied with the Tribunal’s conclusion on that topic.

92    In relation to rehabilitation, if Mr Rodchompoo sought to advance a contrary position on rehabilitation, that is, that he was undergoing it, that it was effective and, therefore, it was likely to reduce the chance of him engaging in further criminal conduct, it was incumbent on him to adduce that evidence and make those arguments. Indeed, he did have the opportunity to address the topic and was cross-examined on it, but the Tribunal was entitled to reach the conclusion it did, having regard to the answers he gave, as to the absence of success of his rehabilitation.

93    In my view, ground 1(b) cannot succeed.

Ground 1(c) - the Tribunal did not comply with the terms of the Direction when it purported to consider the impact of its decision on victims, despite there being no evidence to support its finding

94    Non-compliance with the terms of the Direction is capable of resulting in jurisdictional error: see, for example, the passage of Mortimer J’s judgment in YNQY extracted above. Clause 14.4(1) of the Direction requires consideration of the impact of a decision not to revoke on members of the Australian community, ‘including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness’. Emphasis is placed on behalf of Mr Rodchompoo on the latter half of the sentence in cl 14.4(1) of the Direction concerning the availability of the information and procedural fairness. At [60], the Tribunal stated:

There is no evidence before the Tribunal of the impact on any victims. However, given that Mr Rodchompoo has a history of convictions for supplying drugs in Australia his removal from Australia would diminish the harm which flows from such conduct.

95    Having acknowledged there was no evidence on this topic before the Tribunal, it was not open to the Tribunal, it is contended, to base its decision on the assertion that Mr Rodchompoo’s removal from Australia would diminish the harm flowing from his conduct. This is coupled with the earlier submission that it was inaccurate to say that there was a ‘history’ of convictions of supplying drugs on the evidence before the Tribunal. It is also argued that Mr Rodchompoo was not afforded procedural fairness, being denied the opportunity to respond to the asserted impact of the conduct on alleged victims.

96    Reliance is placed again on YNQY (per Mortimer J at [35] and [39] quoted above).

97    This argument requires going behind the criminal conviction once again. It is true that there was no specific victim evidence, but the general finding made by the Tribunal (at [60]) was certainly a topic on which Mr Rodchompoo was squarely given notice. It is not true to say that there was no history of possession of drugs with intent to sell. There was a plea of guilty in relation to such an offence and there was, accordingly, ‘history’. The general observation that the community would be better off without people selling drugs to it can hardly be the topic of complaint. Not only was that view open to the Tribunal, but it was also available on the evidence in the form of sentencing remarks. For example, Magistrate Langdon noted that the Mr Rodchompoo was ‘living a drug dealing lifestyle’ and continued:

People who deal in drugs in the community really ought to expect to go to jail. It’s a fact that you have no idea about the misery that you have caused for other people in the community when you’re prepared to deal in drugs, particularly methamphetamine, where the side effects and other offences that are the result of people using drugs is something that you’ve got to take responsibility for.

98    Magistrate Langdon also stated that it was ‘for the reason of the need to protect the community from your drug dealing that I have determined that sentences of imprisonment are appropriate’.

99    Even Mr Rodchompoo, himself, provided evidence on this topic in a letter to the Department where Mr Rodchompoo said ‘I was using drug [sic] and alcohol. I then selling drug [sic] to support my habit but that did not last long’. In one of the few pieces of information he put before the Tribunal, there was an admission of sale of drugs to support his habit. In another letter to the Department he said:

I was sentenced to 12 months prison term. 7 months for sell or supply methylamphetaminel [sic], 5 months for sell or supply cannabis. I feel remose [sic] for my crime and the grief I put my family through.

100    Indeed, Mr Rodchompoo has not at any time denied that he sold drugs. What he has said is that, at the time he was apprehended, he had less on him than the amount required to prove the offence, but he still pleaded ‘guilty’. As noted, he also had $1,025.

101    These are not victimless crimes whether or not the crimes pertain to drug sales. For example in an appeal by an accomplice of Mr Rodchompoo, the Court of Appeal of the Supreme Court of Western Australia recorded in Copperwaite v The State of Western Australia [2012] WASCA 224 per Mazza JA (Buss JA agreeing):

The facts of the offending

7    At about 10.30 pm on 20 May 2011, the appellant and Mr Rodchompoo were walking through the grounds of the Fremantle Primary School when they came across the victim who was affected by alcohol and was being sick. They had a short conversation with the victim and then the appellant punched him in the face and knocked him to the ground. The learned sentencing judge described the blow as ‘significant’. A demand was made for money. At the time the victim only had $3.50 on him. A ‘soft’ kick was delivered to the victim by one or other of the appellant and Mr Rodchompoo . Further demands for money were made. Out of fear, the victim said he would go to an automatic teller machine to get more money.

8    The appellant, Mr Rodchompoo and the victim all walked towards Fremantle. As they did so, the victim was struck in the head but the victim was unable to say who hit him. As the group walked past the entrance to the Fremantle Hospital, the victim ran into the emergency department and reported what had happened. The police acted quickly and apprehended the appellant and Mr Rodchompoo . Both men declined to participate in a record of interview.

9    As a result of the attack, the victim received multiple cuts and abrasions to his face and neck and a bruise to his left eye to the extent that it closed over (ts 13).

102    The Tribunal’s statement was open on the evidence before it and Mr Rodchompoo was on notice of the nature of the evidence. Ground 1(c) cannot succeed.

Ground 1(d) - the Tribunal’s decision was so manifestly unreasonable or irrational that no sensible Tribunal acting reasonably could have made it

103    This ground really wraps up the submissions made in support of the previous grounds. For Mr Rodchompoo, it is accepted that it is necessary for a decision to be vitiated for jurisdictional error based on an illogical or irrational findings of fact or reasoning that ‘extreme’ illogicality or irrationality must be shown ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable mind may come to different conclusions’: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J (at [148]). A decision cannot be said to by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 per McKerracher J (with whom Rares J agreed and Reeves J agreed on this point) (at [84]) citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ (at [131] and [135]).

104    It is true that more recently in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court, referring to the decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, recognised an implied legislative intention that a statutory power or discretion must be exercised reasonably and that a disproportionate response could cause the exercise of a discretion to be found to be unreasonable. Different expressions were used by the High Court such as ‘an obviously disproportionate response’ (per Hayne, Kiefel and Bell JJ at [74]) or ‘taking a sledgehammer to crack a nut’ (per French CJ at [30]).

105    The scope and purpose of the power to revoke a cancellation of a visa is intended to be exercised, having regard to a broad range of circumstances and the applicant’s individual circumstances, in particular, those listed in the Direction.

106    Mr Rodchompoo contends that the decision was vitiated by jurisdictional error as being so unreasonable and disproportionate when regard is had to the following circumstances:

(a)    he arrived in Australia at the age of 13, having been brought up in Thailand as a Buddhist and has now been Australia for 25 years;

(b)    he experienced extreme difficulties in his home life in Australia due to the conduct, primarily, of his paranoid schizophrenic Australian stepfather;

(c)    within two years of arriving in Australia, he was in foster care and was effectively living on the streets or in temporary accommodation from the age of 17;

(d)    he had limited Australian schooling and obvious difficulties in comprehending and writing in English;

(e)    the vast majority of his offences have been due to his addiction to alcohol and cannabis;

(f)    his decision in 2015 to plead guilty to being in possession of both cannabis and methylamphetamine with an intention to sell or supply, despite have small quantities of both drugs in his possession, resulted in his receiving a 12 month prison sentence, which caused him to fall within the deeming provisions of s 501(7) of the Migration Act as failing the character test;

(g)    the Tribunal failed to inquire of Mr Rodchompoo as to why he chose to plead guilty to those charges and whether he received any advice at the time in regards to his plea. This is particularly crucial to the Tribunal’s decision in circumstances where the Tribunal purported to consider the ‘risk’ that Mr Rodchompoo’s potential future offending posed to the Australian community;

(h)    there is substantial evidence that Mr Rodchompoo has significant and complex mental illness and unmet treatment needs for his addiction to alcohol and drugs, having acquired his addiction since being in Australia;

(i)    the Tribunal failed to inquire into how the medical needs of Mr Rodchompoo could be met in Thailand, especially without a Thai identity card and given his history of drug addiction and complex mental health issues. If such critically significant and relatively easy inquiries had been made, the Tribunal may have concluded that Mr Rodchompoo would face substantial impediments if returned to Thailand; and

(j)    if the Tribunal had considered his recent counselling and treatment for drug and alcohol addiction, it may have come to a different conclusion as to the potential harm to other citizens from his conduct and what it considered the expectations of the Australian community would be.

107    This argument involves not only a merits review, but a merits review on the basis of a case which was not put by Mr Rodchompoo and is now advanced by his legal representatives. It is a case which rests, not only upon a re-agitation of the merits, but also on a claim that the Tribunal should have made inquiries in respect of the plea of guilty contrary to the authorities, for example, made inquiries in relation to the health services in Thailand etc.

108    In my view, Mr Rodchompoo falls well short of establishing ground 1(d). It is common ground that the authorities caution that this is a very high bar. Even emphatic disagreement would not be sufficient to show extreme illogicality. Mr Rodchompoo needs to establish that no rational, logical decision-maker could have arrived at the decision reached on the same evidence. In my view, he falls well short of establishing that contention. Rather, I accept the Minister’s submissions that the Tribunal’s reasons constitute an orthodox application of established principle to the primary and other considerations based on the evidence before it.

109    Ground 1(d) cannot succeed.

Further contention

110    As foreshadowed, there is a further matter which was raised in reply. Although the Minister relies upon Mr Rodchompoo’s failure to file submissions or affidavits, it is argued for Mr Rodchompoo that the fact that he was self-represented gave rise to particular duties on the part of the Tribunal in accordance with authority. For Mr Rodchompoo reliance is placed on AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 per Flick, Griffiths and Perry JJ (at [22]-[25] and [39]-[42]), where, relevantly, the following appears:

22    As is evident from the transcript, the primary judge summarily dismissed the judicial review application under r 44.12(1)(a) of the FCCA Rules and his Honour delivered ex tempore reasons. The reasons, which totalled 8 paragraphs, may be summarised as follows.

23    After briefly summarising the background to the matter, the primary judge made reference to the Minister having moved for an immediate show cause hearing under r 44.12. His Honour then summarised the Minister’s contentions as to why the two grounds in the application under s 476 of the Migration Act did not identify any arguable jurisdictional error. Without any elaboration, his Honour accepted the Minister’s contentions in respect of both grounds of review.

24    The primary judge stated in [7] that the Tribunal had “carefully set out the relevant law and took into account the Ministerial Direction”, as well as having “carefully set out the applicant’s claims of evidence and materially made adverse findings”. His Honour then set out verbatim 20 paragraphs from the Tribunal’s statement of decision and reasons.

25    The primary judge concluded at [8] that he was “clearly satisfied that the application fails to disclose any arguable jurisdictional error and that this is an appropriate case to dismiss under r 44.12”.

…

111    Their Honours then referred to the judgment of Robertson J (with whom Allsop CJ and Mortimer J agreed) in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 and the decision in Hamod v New South Wales [2011] NSWCA 375 concerning the court’s overriding duty to ensure a trial was fair.

112    In SZRUR, Robertson J held that the appellant had been denied procedural fairness because the primary judge should have explained the relevant Court procedures to the appellant, having regard inter alia to the fact that he did not speak, read or write English, had no legal training nor any understanding of Court rules and procedures.

113    There is no doubting these principles, especially in relation to courts. However, it is only necessary to examine the facts in such cases to identify how different the circumstances were in those instances. Mr Rodchompoo was not legally represented, but he speaks English and is not illiterate. He had some assistance at the hearing, together with the benefit of the SOFAC which alerted him to the matters he might address. He received a hearing and received detailed reasons for the decision. There can be no guarantee of legal representation in such hearings. With the benefit of experienced lawyers, the primary grounds of the application have identified matters it is said that the Tribunal should have pursued; yet these grounds have not been made out. It is difficult to see what else Mr Rodchompoo might have been alerted to which could have changed his prospect of success. I cannot accept in this instance that there was a lack of procedural fairness.

Conclusion

114    As none of the grounds 1(a) to (d) inclusive can succeed, in my view, they do not throw any additional light on ground 1(aa) and cause me to reconsider the conclusion I reached in relation to that ground, which is also dismissed.

115    Although on this occasion the submissions for the Minister have prevailed, the Court is grateful to pro bono counsel and solicitors for the careful and detailed arguments they advanced.

116    Nonetheless, in the circumstances and for the reasons set out above, the grounds of the application do not establish any jurisdictional error on the part of the Tribunal, and the application will be dismissed with costs.

Associate:

Dated:    28 June 2017