FEDERAL COURT OF AUSTRALIA

EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application under s 476A of the Migration Act 1958 (Cth) (Act) to review a decision of the Administrative Appeals Tribunal (Tribunal) that in turn affirmed a decision of a delegate of the first respondent (delegate) to refuse to issue a protection visa to the applicant.

Background

2    The applicant, formerly Sudanese but now stateless, first arrived in Australia on 21 February 2006, holding a Global Special Humanitarian (XB 202) visa. On 18 October 2013 he applied for Australian citizenship. His application for citizenship was rejected on 9 March 2015 on character grounds. The applicant’s humanitarian visa was also cancelled on character grounds on 3 July 2015 under s 501(2) of the Act and he was consequently placed in immigration detention.

3    On or about 30 November 2015 the applicant applied for a protection visa under the Act. Section 36(1A) relevantly provides:

(1A)     An applicant for a protection visa must satisfy:

(a)     both of the criteria in subsections (1B) and (1C); and

(b)     at least one of the criteria in subsection (2).

4    On 8 September 2016, a delegate of the Minister refused to grant the applicant a protection visa, on the basis that the delegate was not satisfied that the applicant met the criterion in s 36(1C) of the Act. Section 36(1C) materially provides:

(1C)     A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)     is a danger to Australia’s security; or

(b)     having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:     For paragraph (b), see section 5M.

5    The delegate was otherwise satisfied that the applicant was a “refugee”, and that he met the criteria in s 36(2)(a) of the Act – namely, that he was:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

Decision of the Tribunal

6    At [9] of its decision, the Tribunal explained that:

The only question that is before this Tribunal is whether the Applicant meets the criterion in section 36(1C) of the Act. Namely, that the applicant is NOT a person whom the Minister [or the Tribunal standing in the shoes of the decision maker] considers, on reasonable grounds:

a)    is a danger to Australia’s security; or

b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

7    The Minister’s position was that the applicant did not satisfy paragraph 36(1C)(b) of the Act.

8    The Tribunal examined the applicant’s criminal history which indicated that he had been convicted of a number of offences relating to assault, including sexual assault. The Tribunal noted at [11]:

A.    On 27 November 2013 at the Brisbane Magistrates Court he was ordered to pay a fine of $200 with no conviction recorded for the charges of ‘fail to leave licensed premises’ and ‘assault or obstruct police officer’.

B.    On 19 December 2013 at the Brisbane Magistrates Court he was charged, but had no conviction recorded, for ‘failure to appear in accordance with undertaking’.

C.    On 31 October 2014 at the Brisbane Magistrates Court the Applicant pleaded guilty to two offences and was sentenced to:

i.    9 months imprisonment with parole granted immediately for ‘assaults occasioning bodily harm’; concurrent with

ii.    2 years imprisonment to be suspended for 4 years (later corrected to 1 year imprisonment to be suspended for 2 years) for ‘sexual assaults’.

9    The Tribunal also noted in respect of the convictions of 31 October 2014:

13.     In the course of sentencing the Applicant, the Magistrate observed that the circumstances of the assault involved aggravation, while at the same time, noting that the victim had ‘expressed the view that she forgives [the Applicant].’

10    Further, the Tribunal noted numerous penalties imposed on the applicant for driving with an alcohol reading over the legal limit, namely in August 2014 in Queensland and February 2012 in New South Wales, as well as outstanding charges and related warrants in Victoria for various offences (such as being drunk in a public place, criminal damage and other driving offences), but which had been struck out or cancelled as a result of the immigration detention of the applicant.

11    In relation to the criterion in s 36(1C) the Minister submitted that the applicant had been convicted by final judgment of a Court of a particularly serious crime, and was a danger to the Australian community. “Particularly serious crime” is relevantly defined by s 5M of the Act as follows:

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36 (1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

12    The Tribunal referred in particular to the definition of “serious Australian offence” in s 5(a)(i) of the Act, namely an offence which “involves violence against a person”, and which pursuant to s 5(b)(iii) is punishable by “imprisonment for a maximum term of not less than 3 years”.

13    The Tribunal noted that the parties had made submissions about the ramifications and impacts of refusing the protection visa, as well as the prospect that if the Tribunal’s decision was that the visa ought be granted then any such visa could immediately be cancelled on character grounds by the Minister pursuant to s 501 of the Act. The Tribunal found these contentions irrelevant (see, for example, [26] and [33]).

14    In relation to s 36(1C) the Tribunal noted that the provision was of recent enactment and had not been the subject of judicial consideration. In summary, the Tribunal observed:

    The criterion in s 36(1C) only applied to protection visa applications made on or after 16 December 2014.

    The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) stated that s 36(1C) was intended to codify the provisions Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement where there are reasonable grounds for regarding a claimant for refugee status as a danger to the security of the country, or who has been convicted of a particularly serious crime.

    Article 33(2) was considered by the Tribunal in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 and BHYK and Minister for Immigration and Citizenship [2010] AATA 662.

    In WKCG, Deputy President Tamberlin QC pointed out that an assessment of whether a person constituted a danger to the Australian community is one of fact and degree, taking into account all the circumstances of a case. Relevant considerations included:

(i)    a consideration of the seriousness and nature of the crimes committed;

(ii)    the length of any sentences that were imposed;

(iii)    any mitigating or aggravating circumstances (around the circumstances of the offending)

(iv)    the extent of the applicant’s criminal history and the nature of his/her prior offending;

(v)    the length of the criminal history; and

(vi)    an assessment of the applicant’s risk of re-offending and recidivism and the likelihood of relapsing into criminal activity. Relevant to this issue was the prospects of rehabilitation.

    In WKCG, Deputy President Tamberlin QC analysed the concept of “danger”, noting that it is a present and forward looking exercise involving a prediction of an applicant’s conduct in the future. The reason for this dualistic approach is because the intent of the provision is to protect the community from any immediate harm but at the same time, harm in the reasonably foreseeable future.

    At [43] and [44], the Tribunal said with respect to WKCG:

43.    Critically, to my mind, the learned Deputy President thought an assessment of an applicant’s level of risk does not involve the application of “… too high a threshold to require that the possibility of harm must be established at the higher level of probability… the expression ‘danger’ involves a lesser degree of satisfaction than that required by the expression ‘probable’.”

44.    Any assessment of whether a person constitutes a “danger” to the Australian community is not exclusively informed by the offence(s) constituting a “particularly serious crime”. “It is necessary to look at the person’s conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions.” Another facet of the assessment of “danger” involves a consideration of whether a predisposition or preponderance towards a given mode of offending can morph into different, but no less serious, offending which is equally capable of endangering the Australian community.

(Footnotes omitted, emphasis in original.)

    The Tribunal noted that the principles in WKCG were followed in BHYK where the Tribunal stated:

“… the Tribunal must determine whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. An assessment must be made of the likelihood of the applicant reoffending by reference to past circumstances, including criminal history, and of the applicant’s prospects for rehabilitation.”

(Footnotes omitted.)

15    At [49] the Tribunal criticised the applicant’s approach to the assessment of danger as being too formulaic with an overly dominant focus on what has occurred in the past in terms of an applicant’s history. In this respect the Tribunal:

    considered it more relevant to focus on what steps have been taken by the applicant to demonstrate that previous factors suggesting a presumption of danger and recidivism had been brought under control and were capable of being managed (at [49]);

    considered that a timeline based approach to an assessment of both the nature of the offending and the risk of recidivism was misplaced (at [50]);

    rejected an approach based on the competitive severity of the offending, compared with offending by applicants in other cases (at [51]);

    noted that the sentencing Court in the applicant’s case assessed the applicant’s danger to the community at the time of sentencing, looking forward in respect of the likelihood of an applicant re-offending and relapsing into criminal activity (at [53]); and

    noted that the applicant’s issues in respect of alcohol remained unresolved, and that there was no evidence of him being under care or treatment (at [54]).

16    The Tribunal examined whether the applicant met the criterion in s 36(1C)(b) by reference to two questions, namely:

(1)    whether the applicant had been convicted by a final judgment of a “particularly serious crime”; and, if so,

(2)    whether the Tribunal considered, on reasonable grounds, that the applicant was a danger to the Australian community.

17    In relation to the first question, the Tribunal was satisfied that the applicant had been convicted of a “particularly serious crime” on 31 October 2014.

18    In relation to the second question, the Tribunal commenced by having regard to the totality of the applicant’s offending, and observed:

59.    …His history contains more than just an apparent run of clumsiness or bad luck as causes for the conduct. The causes are more significant than that: the Applicant clearly has some sort of deficit in his capacity to distinguish right from wrong in circumstances involving: (1) the sacrosanct nature of the personal rights of others, and (2) the fundamental and crucial requirement to respect the laws of this country, and to submit to lawful authority deriving from those laws, as and when he is reasonably required to do so.

60.     The history reveals an absence of any compulsion in the Applicant to respect the law and the citizens it is designed to protect. On the contrary, whether the given activity involves driving a motor vehicle or an amorous advance towards someone piquing his interest, the Applicant seemingly does as he wants or otherwise thinks he can get his own way.

19    The Tribunal examined, in detail, the nature of the applicant’s offending, pursuant to three categories, namely:

    offences of a sexual and violent nature;

    driving offences, including driving whilst under the influence and unlicensed driving; and

    offences indicating a refusal to follow lawful authority.

20    The Tribunal then considered, in detail, medical evidence relating to the applicant’s use of alcohol. The Tribunal concluded that there was too great a deficiency between any reliably demonstrated changes in the applicant’s drinking behaviours and a properly verifiable and completed course of psychological therapies to address his issues with alcohol, such that there was a real risk of the applicant relapsing into abusing alcohol in the future and committing further offences of a dangerous nature (at [95]).

21    The Tribunal also found:

    There was no possibility of a conditional protection visa being granted.

    While there was a prospect of indefinite detention, the Tribunal could not predicate its decision on that basis.

    The additional material on which the applicant sought to rely evinced nothing to dissuade the Tribunal from the view that the applicant’s unresolved issues with alcohol rendered him at risk of reoffending, thus constituting a danger to the Australian community pursuant to s 36(1C)(b).

Federal Court Proceedings

22    The applicant filed the application the subject of these proceedings on 2 November 2017 seeking the following relief:

1.    A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing its decision made on 28 September 2017 in the matter of 2016/4906 in accordance with s 398(1) of the Judiciary Act 1903 (Cth).

2.    A writ of mandamus issue directed to the Administrative Appeals Tribunal in its General Division requiring it to hear and determine according to law by a Tribunal differently constituted the application for review of the decision of the delegate of the Minister dated 8 September 2016.

3.    The Minister pay the Applicant’s costs of the application.

23    The applicant relied on the following grounds:

1.    That the learned Senior Member of the Administrative Appeals Tribunal (the Tribunal) erred in that it asked itself the wrong question and thus proceeded without a correct understanding of the law (Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, [33]).

Particulars

1.1.    The issue for determination was whether the Applicant is a danger to the Australian community (s 36(1C)(b) Migration Act 1958 (Cth)).

1.2.    The proper test for the issue for determination was given in WKCG v Minister for Immigration and Citizenship [2009] MTA 512 [26] (WKCG).

1.3.    Tribunal purported at [40] to apply the test articulated in WKCG.

1.4.    The Tribunal misstated at [40] the considerations from WKCG.

1.5.    The Tribunal stated a further test at [65] that was an unauthorised simplification of the WKCG test.

1.6    The Tribunal applied at [59], [66], and [72]-74] considerations from the Australian Citizenship Act 2007 (Cth) and from the Australian Citizenship Instructions, which were not relevant.

1.7    The Tribunal made conclusions based solely on historical information when it was required at all times to consider future likelihood

2.    Further, or in the alternative, that the learned Senior Member of the Administrative Appeals Tribunal (the Tribunal) erred by not affording the Applicant procedural fairness in that there was unreasonable delay such that there was a real and substantial risk that the Tribunal’s own capacity for competent evaluation was diminished (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, [9]).

Particulars

2.1.     The Tribunal took extensive oral evidence on 22 March 2017 during a full-day hearing from the Appellant; Ms Abiol Mawn; and Dr Gary Banks, an expert witness.

2.2.     The issue for determination was whether the Applicant is a danger to the Australian community (s 36(1 C)(b) Migration Act 1958 (Cth)).

2.3.     The proper test for the issue for determination includes as a primary consideration the risk of re-offending and the likelihood of relapse into crime (WKCG v Minister for Immigration and Citizenship [2009] AATA 512 [26]).

2.4.     The oral evidence of Ms Mawn related directly to the issue for determination.

2.5.     The oral evidence of Dr Banks included concessions about the risk of reoffending and the likelihood of relapse into crime.

2.6.     The hearing was adjourned part-heard until 6 April 2017. The hearing concluded on 6 April 2017 without further oral evidence and the Tribunal’s decision was reserved sine die.

2.7.     The Tribunal did not deliver its decision until 28 September 2017, being 4 months and 22 days after the hearing.

2.8.     The Tribunal in its decision made no mention of the oral testimony of any witness.

2.9.     The oral evidence of Dr Banks was material to the issue for determination.

3.    Further, or in the alternative, that the learned Senior Member of the Administrative Appeals Tribunal (the Tribunal) erred in that it failed to give proper, genuine and realistic consideration to evidence before it (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 [29]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, [37], [171]).

Particulars

3.1.    The Applicant repeats and relies on paragraphs [2.1] to [2.5] above.

3.2.    The Tribunal in its decision made no mention of the oral testimony of any witness

3.3.     The oral evidence was relevant and material to the merits of the case.

Consideration

24    Both the applicant and the Minister in this proceedings were represented by Counsel. At the hearing, Counsel for the applicant addressed grounds of review 2 and 3 together, on the basis that the second ground of review was the applicant’s strongest ground, and shared a very similar factual matrix with ground 3. The submissions of the applicant then addressed ground of review 1. It is convenient to consider the grounds of review in that order.

Grounds of review 2 and 3: absence of procedural fairness because of failure on part of Tribunal to engage with evidence

25    In respect of ground 2, the applicant submitted in summary:

    At the Tribunal hearing the Senior Member substantively engaged with numerous witnesses before the matter was adjourned part heard after two weeks.

    The question arises as to the characteristics of a decision which lead the reader to infer that the Tribunal’s capacity for competent evaluation of the evidence before it was disabled. Procedural fairness will not be given if there was unreasonable delay such that there was a real and substantial risk that the Tribunal’s own capacity for competent evaluation was diminished: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS).

    Principles in NAIS are not only relevant where the credibility or demeanour of a witness is in issue: NAIS at [10], [11], [172].

    There was a delay from the conclusion of the hearing until the decision of four months and 22 days.

    There is no reference at all in a decision exceeding 38 pages to oral testimony of the applicant, Ms Abiol Mawn or Dr Gary Banks in the case.

    While it is possible that the Tribunal did not consider the oral evidence was valuable or relevant, the Tribunal did not expressly make a finding to that effect.

    Two important examples of oral evidence to which the Tribunal did not advert in its decision were Ms Mawn’s testimony about the changes she had observed in the applicant in the prior two years, and expert evidence of Dr Banks in respect of the predicted risk of reoffending by the applicant.

    If nothing of relevance was said during oral testimony, the question arises as to why Counsel for the Minister cross-examined witnesses extensively during that testimony

26    In respect of ground 3, the applicant submitted, in summary:

    Key authorities in support of the principle that evidence given before the Tribunal must be given proper, genuine and realistic consideration are NAIS and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164.

    “Consideration” requires active intellectual engagement.

    When there is an absence of any mention of evidence in a decision, a stronger inference is open that there was not an active intellectual engagement with that evidence by the decision-maker. This was particularly relevant in respect of evidence of Ms Mawn and Dr Banks.

27    In my view, neither ground 2 nor ground 3 has merit. I have formed this view for the following reasons.

28    The applicant directed my attention to the decision of the High Court in NAIS, as a case involving a four and one half year delay following the hearing of the main evidence in the context of inquisitorial proceedings before the then Refugee Review Tribunal.

29    In that case, Gleeson CJ said:

5.    Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.

…

9.    Because the Tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay. What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal’s assessment of the sincerity and reliability of the appellants. That is one of the reasons why they were entitled to, and were given, a “hearing”. An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. Appropriately, effort was directed to a search for independent verification of the claims they were making, and objective justification of the fears they were expressing. Yet ultimately the procedure directed attention to the Tribunal’s assessment of them as witnesses in their own cause. A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.

10.    In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

(Emphasis added.)

30    Kirby J in particular observed:

78.    As numerous authorities attest, the issue presented by the complaint of delay is rarely, if ever, about the delay itself. The issue is ordinarily about the effect of the delay upon the decision that is impugned.

31    Callinan and Heydon JJ materially found:

172.    The answer to these arguments is that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal’s mind. Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that “delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants.” That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.

173.    The circumstances of this case are specific to the Refugee Review Tribunal.

174.    This is in our opinion a very exceptional case. The facts, it is to be hoped, are extraordinary. It is one in which the Court is bound to hold that the proceedings have not been fairly conducted, by reason of the delays, both from beginning to end, and between each episode in them. We cannot accept that the only relevant delay is that which occurred between the second oral hearing and the giving of the decision. This is so because the decision was concerned with demeanour on two occasions, long separated in time, and each requiring to be related and compared to the other, and weighed with a considerable volume of written evidence.

(Emphasis added.)

32    As was reiterated in NAIS, it is only exceptional cases where the delay in delivering a decision can give rise to an inference of procedural fairness. As a general proposition, a period of four months and 22 days is not a lengthy delay for delivery of reasons for decision, particularly where the matter raises issue of novelty and complexity (as in this case). The reasons of the Tribunal are extensive, and demonstrate significant engagement by the Tribunal with material before it including expert medical evidence of Dr Banks and clinical psychologist Ms Catherine Bone. I am not satisfied that a delay of four months and 22 days by the Tribunal in delivering its decision in this case is such that the Tribunal was unable to, in the words of Kirby J in NAIS at [106], remember, assess and evaluate the evidence offered.

33    The applicant also submits that the Tribunal may have confused its decision-making in this case with another decision delivered on the same day, namely Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561. The basis of this claim was the applicant’s contention that the Senior Member used similar language in its reasoning in both cases. In particular, similar language was used by the Tribunal:

    in this decision at [74] and in Bartlett at [43];

    in this decision at [75] and in Bartlett at [44];

    in this decision at [76] and in Bartlett at [45]; and

    in this decision at [95] and in Bartlett at [50]

34    In my view, this submission has no merit. The use of similar language in these paragraphs is suggestive, at worst, only of a lack of variety of terminology in his reasoning on the part of the Senior Member. Both cases had similar factual circumstances, including a long list of drink driving and unlicensed driving offences, substance abuse issues which were the cause of the offending, and a failure on the part of the respective applicants to address those issues. As Counsel for the Minister correctly submitted, notwithstanding the use of similar language, the Tribunal went on to consider the individual facts of each case. I reject the proposition that the Tribunal was confused merely on the basis of common language in these cases.

35    The applicant claims, in substance, that the absence of specific mention by the Tribunal in its decision of the oral evidence of the applicant, Dr Banks and Ms Mawn was indicative of the failure of the Tribunal to properly consider their evidence, and further attributes this absence of consideration to the elapse of time between the hearing and the delivery of reasons. In particular, the applicant referred in his submissions to the oral evidence of Dr Banks and Ms Mawn.

36    As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593:

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.)

37    The observations of the Court in WAEE are on point in this matter. The Tribunal clearly gave detailed consideration to the issues before it, the submissions of the parties, and the expert evidence. The applicant conceded that the Tribunal extensively engaged with Dr Banks and Ms Mawn during their oral testimony – as I suggested to Counsel for the applicant during the hearing, a more likely inference to be drawn from the absence of reference by the Tribunal to that oral evidence in the reasons for decision was that the Tribunal simply formed the view that that evidence was immaterial.

38    A more useful question is whether there was anything in the oral evidence of the applicant, Dr Banks and Ms Mawn of importance such that, if the evidence was overlooked by the Tribunal, the result was jurisdictional error on the part of the Tribunal.

39    Counsel for the applicant submitted that the importance of this evidence is reflected by the length of time spent by Counsel for the Minister cross-examining them. In my view, however, the extent to which the Minister’s Counsel cross-examined those witnesses at the Tribunal hearing is of little relevance to the importance of that evidence. Another and more realistic inference for me to draw is that Counsel for the Minister at the Tribunal hearing was simply testing the evidence of those witnesses.

40    In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, Robertson J referred to the need of the Court to be cautious before concluding that the Tribunal overlooked a piece of evidence (at [28]) and explained:

26.    The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker “is required to make his decision on the basis of material available to him at the time the decision is made” (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).

27.    It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not ‘insignificant or insubstantial’ (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker’s reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]- [29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [85]-[86]).

41    The transcript of evidence in the Tribunal indicated that Ms Mawn had been in a personal relationship with the applicant for some time, and had contemplated marrying him. Her evidence included that the appellant had a propensity to drink large quantities of “strong liquor” (AAT transcript, 22 March 2017, page 80, lines 32-34; page 81, lines 34-47; page 82, lines 6-15), and that the appellant’s friends influenced him to drink alcohol (AAT transcript, 22 March 2017, page 84, lines 10-13), although she thought that he had stopped drinking when he was detained on Christmas Island (AAT transcript, 22 March 2017, page 82, lines 23-25). This evidence was consistent with the Tribunal’s view that the appellant had serious issues with alcohol, and that he was at real risk of relapsing into abusing alcohol in the future and committing further offences of a dangerous nature (at [95]). While Ms Mawn described her perception of an improvement in the applicant’s demeanour during the two years prior to the AAT hearing, in particular his cessation of drinking, it was clear that from the material before the Tribunal that this period coincided with the applicant’s time in detention on Christmas Island (a period described by the Tribunal at the hearing – and not challenged by Dr Banks – as a time of forced abstinence in a “dry environment”): AAT transcript, 22 March 2017, page 72, lines 1-3. The Tribunal made factual findings based on medical expert of Dr Banks, including that the applicant required psychological therapies to address the issues which were causing him to abuse alcohol, and that he was at risk of relapse into his previous alcohol abuse.

42    Such findings were open to the Tribunal. If the Tribunal did not advert to Ms Mawn’s perceptions of the applicant, I can infer that this was because the Tribunal preferred the medical evidence relating to the applicant’s condition and did not attribute Ms Mawn’s evidence any weight.

43    In respect of the oral testimony of Dr Banks at the Tribunal hearing, Dr Banks was examined in chief by Counsel for the applicant in relation to matters including the applicant’s conviction of sexual assault and the risk of the applicant reoffending. The examination extended over several pages of transcript. However, the exact problem arising from the Tribunal’s alleged overlooking of Dr Banks’ evidence is not apparent, and not identified by the applicant.

44    While the applicant submits that Dr Banks made concessions about the applicant’s scoring on one test, which lowered the score and hence the five-year recidivism risk, the extent to which this evidence could have affected the Tribunal’s conclusion concerning the applicant’s ongoing risks relating to alcohol abuse and the potential for reoffending is not apparent. I make this observation in the context of the Tribunal’s detailed consideration of Dr Banks’ expert evidence and the reasons given by the Tribunal. In particular, I note the Tribunal’s observation at [94] that the applicant had demonstrated limited insight into his alcohol abuse, and there was no concrete evidence before the Tribunal that the applicant had sufficiently and appropriately managed this issue, and the “real risk of relapsing into abusing alcohol abuse in the future” which did not appear to be disputed in oral evidence by Dr Banks.

45    Further, and in any event, it is evident from the reasons of the Tribunal that it gave genuine and proper attention to the submissions of the applicant in the Tribunal proceedings in respect of the risk of recidivism. At [46] of its reasons, the Tribunal summarised the applicant’s case in respect of the risk of recidivism, and the applicant takes no issue with that summary in this appeal. At [48], the Tribunal acknowledged the contention that the applicant’s history did not place him in a high risk category of recidivism and danger. Importantly, at [49] the Tribunal disagreed with the applicant’s approach to the assessment of danger as being too formulaic and with an overly dominant focus on what had occurred in the past, and further observed:

54.    As will be explained in detail later in these reasons, this Applicant’s issues with alcohol remain unresolved. There is no evidence of him being under the care, treatment or supervision of a psychiatric or psychological therapist for his predilection towards abusing alcohol. In the absence of any such treatment or management plan addressing this issue, I am not comfortable in concluding the Applicant does not present a risk to the Australian community.

46    The Tribunal’s criticism of the “formulaic” approach of the applicant could reasonably extend to the applicant’s position in respect of the oral evidence of Dr Banks concerning the applicant’s “score” of the risk of recidivism.

47    Finally, as Counsel for the applicant submitted in the current proceedings, it is evident from the Tribunal’s reasons that it was cognisant of events at the Tribunal hearing. I note in particular the following paragraphs:

88.    Dr Banks is in no doubt that was he to remain in Australia, the Applicant’s issues with alcohol (and thus his propensity to re-offend and constitute a danger to the Australian community) warrant “...access [to] psychological therapies to commence addressing these issues.” This recommendation led me to a segway at the hearing causing me to – given the novelty of this application - suggest to the parties some type of “agreed outcome” whereby the Applicant be allowed a visa but “conditioned” in the sense that it contained something akin to reporting requirements, much like a parole order in the criminal courts. The parties duly obliged the Tribunal and followed up with this request, for which the Tribunal is grateful. I shall discuss the outcome of that segway later in these reasons.

…

96.    As mentioned earlier in these reasons, at the hearing I enquired about the possibility of granting the Applicant a protection visa with conditions. My specific thought involved a visa conditioned by, for example, compulsory reporting requirements (similar to a parole-based order) with perhaps an agreed regime of testing for the presence of alcohol and/or illegal substances in the Applicant’s system.

97.    Given the novelty of the present application and the possibility of perhaps a novel solution, the parties agreed to adjourn the hearing for a couple of weeks to explore the possibility of a conditional visa…

(Footnotes omitted, emphasis added.)

48    In this respect, it is unlikely that the Tribunal had regard to some, but not all, events which occurred at that hearing.

49    In my view the applicant invites the Court to review the decision of the Tribunal with an eye finely attuned to the perception of error, an approach criticised by the High Court in such cases as Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

Ground of review 1: The Tribunal asked itself the wrong question

50    In summary, the applicant submitted as follows:

    The decision-maker must act reasonably on a correct understanding of the law and untainted by other considerations: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33].

    The citizenship policy which supports the Australian Citizenship Act 2007 (Cth) provides guidance on the interpretation of and exercise of powers under the Act and the Australian Citizenship Regulations, but has no express relationship to the migration legislation.

    The ability of the applicant to distinguish right from wrong, and failing to respect the laws of Australia, derives from the citizenship policy, however these principles were not put by either party to the Tribunal, and neither party knew that this issues was in the Tribunal’s mind.

    The proper test for the issue for determination was set out in WKCG, however the statements of the Tribunal at [65] constituted an unauthorised simplification of that test.

    The Tribunal’s conclusions at [63], [74] and [77] were based solely on historical information when it was required at all times to consider future likelihood.

51    The Tribunal clearly stated in its reasons that there was no assistance or guidance for a decision maker in the form of an ancillary guide or other policy document informing a determination of what constituted a danger to Australia’s security or the Australian community (at [32]). In respect of s 36(1C), the Senior Member specifically stated that he was unable to locate any official government policy or guide informing the assessment he must make (at [34]). As Counsel for the Minister correctly submitted, the moral qualities of a person, including the ability to distinguish “right” from “wrong”, go to their good character and whether or not they are a danger to the community for the purposes of s 36(1C). To that extent, irrespective of the language used, there is no basis to infer that the Tribunal improperly applied a citizenship policy referable to other parts of the Act, which looked at similar issues when that policy was not before the Tribunal, and the Tribunal did not refer to it.

52    The applicant criticises as an “unauthorised simplification” the Tribunal’s consideration of the test set out in WKCG. I do not agree. At [37]-[55] Tribunal specifically, accurately, and in detail, referred to the legal principles set out in WKCG. The Tribunal recognised that all the circumstances of a given case must be taken into account in assessing whether a person represented a danger to the community (at [33], [39]). The Tribunal considered the arguments and material before it, and applied relevant principles to the case before it. Criticism by the applicant of aspects of the Tribunal’s reasons, including the failure by the Tribunal to refer to the risk of re-offending and recidivism as a primary consideration and the words “any mitigating or aggravating circumstances (around the circumstances of the offending)” in my view are suggestive of an eye finely attuned to the perception of error. As is clear for example from [95] and [115] of the reasons, the Tribunal’s conclusion that the applicant represented a danger to the community was reached after an evaluation of the evidence pertaining to both his offending and the risk of recidivism.

53    The applicant conceded that this ground of review is his weakest ground. This is not surprising. In my view it has no merit.

Conclusion

54    In my view the application has no merit. It should be dismissed with costs.

Associate:

Dated:    11 October 2018