FEDERAL COURT OF AUSTRALIA

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the respondent.

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

REASONS FOR JUDGMENT

BROMBERG J:

INTRODUCTION

1    The applicant is a 31 year old citizen of Sri Lanka of Tamil ethnicity.

2    On 28 June 2009, the applicant, then 22 years of age, arrived in Australia. On 15 September 2010, he was granted a protection (subclass 866) visa (“visa”).

3    On 19 August 2011 the applicant was involved in a violent altercation between members of the Sri Lankan community. The assault involved a piece of gym equipment (a metal bar) which was used to strike two victims who both sustained head injuries. The applicant and three others were charged with grievous bodily harm and unlawful wounding. The applicant pleaded not guilty to the charges.

4    On 30 October 2013, the applicant was convicted of these offences in the Perth District Court. On 19 December 2013 he was sentenced to two and a half years’ imprisonment for the grievous bodily harm offence and twelve months’ imprisonment (to be served concurrently) for the unlawful wounding conviction.

5    On 31 July 2015, a delegate of the first respondent (the “Minister”) made a decision pursuant to s 501(3A) of the Migration Act 1956 (Cth) (“Act”) to cancel the applicant’s visa (“cancellation decision”).

6    Section 501(3A) of the Act, when read in conjunction with ss 501(6)(a) and 501(7)(c), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the “character test” because (relevantly) the person has a substantial criminal record and has been sentenced to a term of imprisonment of 12 months or more. It was not in dispute that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A) of the Act.

7    Where a cancellation decision is made under s 501(3A) of the Act, s 501CA(3) requires that the Minister give notice of the decision to the person whose visa has been cancelled and invite the person to make representations about revocation of the cancellation decision. Section 501CA(4) of the Act empowers the Minister to revoke a cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the “character test” (as defined in s 501 of the Act) or that there is “another reason” why the cancellation decision should be revoked.

8    On 3 August 2015, the applicant made a request for and representations directed at revocation of the cancellation decision.

9    On 13 February 2017, an International Treaties Obligation Assessment (“ITOA”) was conducted. The ITOA concluded that the applicant was no longer a person to whom Australia owed protection obligations and that Australia did not, at that time, have any non-refoulement obligations to him.

10    On 28 February 2017, the applicant’s migration agent provided further submissions disputing the conclusions in the ITOA.

11    On 3 March 2017, a delegate of the Minister decided not to revoke the cancellation decision (the “non-revocation decision”). In accordance with s 501G of the Act, the delegate prepared a statement of reasons for the non-revocation decision dated 3 March 2017.

12    On 8 March 2017, the applicant lodged an application for review of the non-revocation decision in the Administrative Appeals Tribunal (“Tribunal”).

13    On 29 May 2017, the Tribunal affirmed the decision of the delegate that the cancellation decision should not be revoked.

14    This is an application for judicial review of the Tribunal’s decision under s 476A of the Act.

GROUNDS OF Review

15    By an amended originating application dated 18 April 2018, the applicant advances three grounds of review as follows (without alteration):

(1)    The Tribunal erred by acting on a wrong principle in that the Tribunal acted on the premise that it could not examine the facts upon which the applicant’s conviction was based and could not receive evidence that was inconsistent with, or that contradicted, evidence relied on by the District Court of Western Australia in arriving at the conviction, when, as a matter of law, the Tribunal was not entitled to go behind the conviction but was entitled to receive, and to give such weight as it considered appropriate to, evidence contrary to, or inconsistent with, the evidence on which the conviction was based.

(2)    The Tribunal erred by failing to engage in the fact-finding task and thereby constructively failed to exercise its jurisdiction and/or made a finding of fact that was irrational or illogical.

(3)    The Tribunal erred by making findings of fact for which there was no evidence and/or by making findings of fact that were irrational or illogical.

GROUNDS 1 and 2

16    Grounds 1 and 2 of the application are closely related and may be dealt with together.

The Tribunal’s Decision

17    Grounds 1 and 2 are directed at demonstrating error in the Tribunal’s reasoning in respect of the seriousness of the applicant’s prior conduct and his risk to the Australian community. It was not in dispute that those are considerations that the Tribunal was entitled to take into account in deciding whether to revoke the cancellation decision.

18    In the context of considering the seriousness of the applicant’s prior conduct, at [41] of the Tribunal’s reasons, the Tribunal set out a comprehensive extract of the sentencing remarks of the trial judge. Those remarks recorded the findings of the trial judge, including that:

(1)    the applicant found the metal bar and armed himself with it;

(2)    the applicant wielded the metal bar as a weapon;

(3)    the applicant hit the victims in the head with the metal bar and that one of the victims was hit with such force that he was knocked down and rendered momentarily unconscious;

(4)    as the applicant had used the metal bar in the attack, the applicant was culpable for the charges of unlawful wounding;

(5)    there was no evidence that either of the victims said or did anything which might have provoked the applicant’s attack upon them;

(6)    all four men went to the house where the attack occurred with the specific intent of inflicting harm on one of the victims;

(7)    it was unclear what the motivation of those involved in the attacks was; and

(8)    of the four men involved, the applicant was the most culpable in terms of the injuries he inflicted, although it was difficult say who of the four men was more culpable in terms of leadership and organisation.

19    The Tribunal observed at [41] that the trial judge’s remarks demonstrated how serious the trial judge viewed the applicant’s criminal conduct.

20    At [42]-[43] the Tribunal then recorded the applicant’s oral evidence in relation to the conviction and noted that, in the course of his oral evidence to the Tribunal, the applicant had indicated that he was deeply remorseful for what had occurred but strongly denied that what happened was as described by the trial judge in the sentencing remarks.

21    Those paragraphs are central to the Grounds 1 and 2 of the application, and are as follows:

[42]    In oral evidence before this Tribunal, HZCP indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the mental bar, as found by the judge).

[43]    The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Re Milnar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180

22    At [44]-[49] the Tribunal went on to consider the seriousness of the applicant’s offending and concluded that the seriousness of the applicant’s offending weighed heavily against the revocation of the cancellation decision. In particular, at [47]-[48] the Tribunal said:

[47]    It is clear from the above that some of HZCP’s offences were violent in nature. The injuries inflicted on the two victims cannot be described as anything other than the result of an act of violence. It is also evident from the sentencing judge’s remarks that this incident was unprovoked, organised, premeditated and that HZCP was more culpable than his friends for both assaults with a metal bar on two innocent men.

[48]    The nature of HZCP’s violent offences evidences a degree of recklessness toward the well-being of the Australian community that cannot be excused or dismissed. This is made more problematic by his complete failure to acknowledge his central role in the commission of these offences and his blanket denial in relation to at least one of the violent charges against him for which he was ultimately found guilty. This, in turn, says a great deal about the extent to which he really is remorseful.

23    At [50]-[65] the Tribunal considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, particularly of the sort for which he was convicted. At [53] the Tribunal noted:

[53]    In oral evidence before the tribunal, HZCP again stressed that he was deeply remorseful for what occurred. It is noted, however, that he continued to deny the facts surrounding the assaults and his role in those assaults as ultimately determined by the sentencing judge.

24    The Tribunal concluded at [65] that the applicant represents an unacceptable risk to the Australian community which weighed against revocation of the cancellation decision. Relevantly to this proceeding, at [63]-[64] the Tribunal said this:

[63] … [T]he Tribunal has reservations about the extent to which HZCP’s rehabilitation programs to date will prevent him from further reoffending. At their core, rehabilitation programs require honesty and an ability to admit to past wrongs and acknowledge the type of behaviour and character traits that allowed these wrongs to occur. This is particularly the case when past violent behaviour resulted from an inability to control anger or adhere to basic social norms. The Tribunal is not convinced that HZCP has fully recognised and dealt with the behaviours that led to the violent assaults against two innocent men in 2001. Before this Tribunal, HZCP refused to accept responsibility for at least one of these assaults. He further suggested that in relation to the assault that he does admit to, this was really little more than self-defence. This is despite the sentencing judge finding unequivocally on the evidence that HZCP was more culpable than his co-accused. This demonstrates a lack of insight and reflects poorly on HZCP’s character. Importantly, his attitude and lack of remorse raises concerns about the value of the rehabilitation programs he has undertaken.

[64]    This, in turn, raises the possibility that HZCP will engage in further criminal behaviour in Australia if he is released from detention. Given his behaviour to date, his refusal to acknowledge it and the Tribunal’s concerns about his rehabilitation, this raises concerns about the extent to which HZCP poses an unacceptable risk to the Australian community.

The parties’ submissions

25    By Ground 1 the applicant challenges the Tribunal’s statement at [43] that it could not “contradict or go behind a conviction and examine the facts upon which it is based”. In support of that statement, the Tribunal expressly relied on a number of authorities, including two judgments of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575.

26    The applicant contended that the authorities that the Tribunal relied upon were wrongly interpreted by the Tribunal and that the Tribunal’s statement of the law at [43], extracted at [21] above, is wrong. The applicant submitted that the Tribunal acted on the premise that it could not examine the facts upon which the applicant’s conviction was based and could not receive evidence that was inconsistent with, or that contradicted, evidence relied on by the trial judge in sentencing the applicant.

27    Placing reliance on the reasons of Fisher and Lockhart JJ in Daniele (at 138), Fox J in Gungor (at 445-446) and Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 (at [41]-[43]), the applicant contended that while the Tribunal was required to respect the conviction itself, it was entitled to receive, and to give such weight as it considered appropriate to evidence contrary to, or inconsistent with, the findings of fact on which the conviction was based.

28    The applicant placed particular emphasis on the statement by Fisher and Lockhart JJ in Daniele (at 139) that:

[w]e cannot accept that the Tribunal is not entitled to examine for itself all facts, including those necessarily found by the jury.

29    Counsel for the applicant referred to Sheppard J’s observations on that statement in Gungor (at 466) that:

[Fisher and Lockhart JJ’s statement at 139] may suggest to some that the Tribunal is entitled to examined facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence – called before the Tribunal but not at the trial – would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, in light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli’s case and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.

30    Counsel for the applicant submitted that Fisher and Lockhart JJ correctly stated the law in Daniele and that, “while the position is somewhat muddied by Gungor”, the subsequent decision in Gungor should not be read to alter the law.

31    The applicant submitted that Sheppard J’s statement in Gungor at 466 (set out at [29] above) was inconsistent with the express words of Fisher and Lockhart JJ in Daniele at 139 (set out at [28] above) and is wrong. This was said to be supported by the reasons of Fox J in Gungor where his Honour (at 449) expressly agreed with the reasons of Fisher and Lockhart JJ in Daniele. Consequently, the applicant argued that, even if Sheppard J’s decision is to be taken as a construction of Daniele that limits or confines that authority, that limitation does not find support in the decision of Fox J and should not be followed.

32    The applicant further submitted that, even if Sheppard J was correct, it would remain open to the applicant to lead evidence of the circumstances surrounding the offence, whether or not they established the defence of self-defence, because those circumstances bore on the seriousness of the conduct. This was said to be consistent with Sheppard J’s view (at 466) that the Tribunal could still receive evidence that puts the Tribunal in a position to weigh and make its own assessment of the seriousness of the conduct which led to the conviction. The applicant submitted that this would necessarily involve evidence surrounding the conviction itself.

33    Finally, by reference to observations made by Fisher and Lockhart JJ in Daniele (at 139) the applicant submitted that, while the Tribunal is not bound by the rules of evidence, it ought not to erect a rule of issue estoppel where no such rule otherwise exists.

34    By Ground 2, the applicant submitted that the Tribunal erred by failing to engage in the necessary fact-finding task and thereby constructively failed to exercise its jurisdiction and/or made a finding of fact that was irrational or illogical. That error was said to flow from the error identified by the applicant in Ground 1. That is, by reason of the Tribunal’s belief that it was bound by the necessary facts on which the conviction was based, the Tribunal failed to make its own findings of fact in relation to the applicant’s conduct.

35    Counsel for the applicant submitted that the applicant’s narrative of what occurred on the day of the offences were matters of context that were not inconsistent with the applicant having been found guilty of the offences, and were therefore matters that the Tribunal was required to have regard to and weigh. Further, that it was not open to the Tribunal to infer that the applicant lacked insight into and remorse for his offending without first positively rejecting the evidence of the applicant as being untruthful.

36    In oral submissions, counsel for the applicant conceded that the applicant’s evidence before the Tribunal that he did not use the metal bar went to the fact of the conviction itself and was not a matter that the Tribunal was required to have regard to.

37    In response to Ground 1, the Minister submitted that the Tribunal did not err in its statement of the law at [43]. By reference to the authorities including Daniele, Gungor, Ali and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ), the Minister submitted that while the Tribunal may inquire into the circumstances of a conviction, it cannot do so if the true effect of conducting such an inquiry is to undermine and contradict the essential character and extent of the offending conduct that supports the conviction.

38    Counsel for the Minister contended that the applicant’s asserted inconsistency between Gungor and Daniele has not been recognised by subsequent Full Courts or single judges of this Court and should be rejected.

39    As to Ground 2, the Minister contended that the Tribunal properly characterised the applicant’s evidence before the Tribunal as inconsistent with, and capable of undermining, the conviction and the sentence imposed by the trial judge.

40    The Minister submitted that, having identified the character and purpose of the applicant’s evidence at [42]-[43], the Tribunal properly applied authorities that stand for the proposition that it is not permissible to contradict or go behind a conviction and examine the facts upon which it is based.

Relevant authorities

41    In Daniele, the Tribunal allowed an appeal principally because of a supposed misdirection by the trial judge and the view of the Tribunal that, as a consequence, the applicant might not have been convicted of the crime of manslaughter had the proper direction been given. The decision of the Tribunal was set aside by the Full Court of this Court.

42    In the course of their joint judgment Fisher and Lockhart JJ said, at 138-139 (emphasis added):

The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.

The Tribunal’s task includes assessing the deportee’s character and personality, his criminal behaviour, the risk to the Australian community if he remains here and the likelihood of harm to him if he is deported.

Counsel for the applicant contended that the Tribunal in performance of this task was bound to accept the conviction and the facts necessarily found by the jury in reaching its verdict. We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community. However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel. Such a doctrine has not found a sure place in respect of issues arising out of criminal proceedings either in this country or the United Kingdom and is even less at home in the proceedings of a Tribunal composed in part of laymen and directed to follow informal procedure.

43    Later and at 139, their Honours said that (emphasis added):

Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) directing that proceedings should be conducted as far as possible with little formality and technicality and subs-s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.

44    This issue was also addressed by Davies J but in terms different and distinct from the approach taken by Fisher and Lockhart JJ. At 140, his Honour said that:

[t]he conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.

45    His Honour described the task of the Tribunal at 141-142 (emphasis added):

The fundamental task of the Tribunal is to give the applicant before it and the respondent a hearing and to form its own judgment on all the matter which are relevant to the exercise of the power of deportation. Many of the matters which were in issue before the criminal court will also be either in issue or relevant to matters in issue before the Tribunal. But, because the scope of the enquiry before the Tribunal will ordinarily be much wider than the enquiry before the criminal court, it is likely that the Tribunal will have to examine the criminal activity with eyes different from those of the criminal jury. The total pattern of the deportee’s behaviour, including his criminal behaviour, his personality and characteristics, the risk of recidivism, the risk of harm to the community should he remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value.

No principle of estoppel precludes an examination of these matters. A conviction does not constitute an estoppel in rem save as to the fact of the conviction. …

46    Ultimately, Fisher and Lockhart JJ did not need to resolve the appeal by reference to the extent to which the Tribunal could examine for itself all relevant facts. Their Honours allowed the appeal on the basis that there had been no misdirection by the trial judge to the jury and that, in any event, whether or not the jury had been misdirected was not a matter relevant to the performance of the Tribunal’s task (at 140).

47    In his separate judgment, Davies J concluded that, by reference to the approach taken by Dixon CJ in Zeims v Prothonotory of the Supreme Court of New South Wales (1957) 97 CLR 279 at 283, the Tribunal could examine for itself all relevant facts including the circumstances lying behind the conviction, and it was proper for it to do so in the review of the deportation order (at 145). Nevertheless, his Honour concluded that in looking at those matters the function of the Tribunal was not adequately performed and there had been undue focus on the circumstances of the trial (at 145).

48    In Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981), an unreported Full Court judgment of Keely, Fisher and Davies JJ (published a few days after Daniele and in which no mention of Daniele is made), the applicant submitted that the Tribunal incorrectly proceeded on the basis that it could not go behind the conviction even though the evidence before the Tribunal, it was said, established that the verdicts of the jury were inconsistent and that the applicant did not receive a fair trial. The Full Court observed at 4-5 that (emphasis added):

This submission misconceives the role of the Tribunal in reviewing the decision of the Minister. The fact of the conviction stands conclusively as the source of the jurisdiction of the Minister to make a deportation order and as affecting the standing or credit in the community of the applicant as a convicted person. Moreover, the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. They are the concern of the Criminal Appeal Courts and of the prerogative of the Crown. If the Tribunal were to ignore the conviction or merely to act upon its own view as to the form of the indictment, the course of the trial, the correctness of the summing up and the propriety and consistency of the verdict and the penalty, it would take into account irrelevant considerations.

49    By reference to the Tribunal’s statement that “[t]he conviction cannot be challenged before the Tribunal”, it was further submitted by the applicant that the Tribunal had unduly restricted its task. However, the Full Court found that in making this statement, the Tribunal member was not intending to limit his consideration of relevant matters. At 5 the Full Court said (emphasis added):

[The Tribunal’s statement] simply drew the distinction between the conviction which stands conclusively as a source of jurisdiction for the making of a deportation order and as a matter affecting the standing or credit in the community of the convicted person on the one hand and all the other facts and matters weighing in favour of or against deportation on the other. The latter matters may involve the Tribunal in considering the applicant's behaviour, including his involvement in crime. But that task is not undertaken with a view to reviewing the conviction itself, for that is the function of the criminal courts.

50    The Full Court went on to say that, if any criticism is to be made of the reasons of the Tribunal, it is in respect of the statement that it would hear all evidence “even though it contradicts” the conviction, and that the Tribunal’s task is to ascertain “the real facts” behind the conviction. The Full Court observed that those words could suggest that the correctness of the conviction is a relevant factor. However, at 5-6 their Honours concluded that (emphasis added):

[I]n our view [the Tribunal] used these words not for such a purpose but to indicate that all the evidence was relevant for the purpose of assessing the conduct of the appellant. The Tribunal's assessment of the nature and gravity of the conduct of the appellant both in relation to the particular offence and generally is of vital importance. This conduct must be evaluated to determine whether it is so serious that he should be required, in the interests of this country, to depart. Furthermore such conduct will assist in determining the likelihood of recidivism and whether the appellant, if permitted to remain, will be a satisfactory citizen of this country. Thus the Tribunal must investigate, inter alia, the facts concerning the appellant's criminal behaviour, not for the purpose of reviewing the conviction but to evaluate his conduct.

51    The Full Court noted in Degerli that if the Tribunal had been presented with evidence that ran counter to that given at the trial or the facts necessarily found by the jury in reaching their verdict, the Tribunal’s duty “would have been to consider and evaluate it not for the purpose reviewing the verdict of the jury but as a factor in [its] assessment of the conduct of the appellant” (at 6).

52    In Gungor, delivered shortly after Daniele and Degerli, the Full Court of this Court found that the Tribunal erred in departing from the view of the facts necessarily adopted by the jury in reaching its verdict in respect of the offence upon which the Minister’s decision to deport was based. Fox and Sheppard JJ delivered separate judgments and Fisher J expressed general agreement with each.

53    It is useful to set out the facts of this case before turning to the reasons. Mr Gungor had been convicted of the offence of supplying Indian hemp. Before the Tribunal, Mr Gungor had introduced evidence that had not been before the jury or the trial judge and which offered a different account of the circumstances of his offending and the events of the night on which he had been apprehended by police. The tenor of this evidence was that he was not directly involved in the supply of the drug but instead facilitated supply of the drug by others.

54    The Tribunal considered this evidence and purported to uphold the conviction, albeit on the different basis that Mr Gungor was an aider and abettor to the supply of drugs, or put another way, a principal in the second degree – not the first degree as the jury must have found. The Tribunal noted that the difference in account (which it accepted) was “important as background”.

55    In respect of the broad policy considerations applicable to the Tribunal’s function, Fox J said at 445-446 (emphasis added):

What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge), should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury.

56    Fox J (at 449) expressly agreed with the observations of Fisher and Lockhart JJ in Daniele at 138 (set out in the first paragraph extracted at [42] above) and the observations of Keely, Fisher and Davies JJ in Degerli at 4-5 (set out at [48] above).

57    His Honour further said at 449-450 that (emphasis added):

If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the conviction. On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine. If the problem arises in practice, it will have to be met. However, the case is probably a rare one where the line between what can be taken into account and what cannot becomes too refined without there having been a sustained attack on the conviction, or a determined presentation of evidence running counter to it. In either case the Tribunal is put on notice, and can control proceedings in such a way as seems appropriate to it.

It is in my view an error of law for the Tribunal to proceed to its conclusion on the basis of facts inconsistent with the conviction and that, as it seems to me, is what has happened in the present case.

58    Sheppard J considered that the Tribunal in this case had “at the invitation of the respondent and quite consciously, depart[ed] from the view of the facts necessarily adopted by the jury in reaching its verdict” (at 465).

59    Sheppard J concluded that it was not open to the Tribunal to go behind the conviction or to set at nought the conviction upon which the deportation order was based (at 468). His Honour said (at 469) (emphasis added):

The taking of such a course by the Tribunal has, in my respectful opinion, the effect of both going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error.

I do not believe that such a conclusion is greatly restrictive of the Tribunal’s difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal’s recommendation.

60    In relation to the reasons of Fisher and Lockhart JJ in Daniele, Sheppard J said (at 466):

For present purposes the most significant statement in the judgment of Fisher and Lockhart JJ is that in which they say that they cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. That statement may suggest to some that the Tribunal is entitled to examined facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence – called before the Tribunal but not at the trial – would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, in light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli’s case and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.

61    In Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180 the applicant was convicted of having in his possession a trafficable quantity of heroin. The applicant had not been prosecuted for trafficking or dealing in heroin. Relying on Gungor, Davies P held that the conviction for possessing a trafficable quantity of heroin could not be interfered with and that it was not permissible for the Tribunal to challenge the sentence by examining whether the facts before the jury demonstrated that the applicant was guilty of trafficking or dealing in heroin.

62    In Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49, Davies J found that the Tribunal misunderstood the effect of the principle enunciated in Daniele, Degerli and Gungor. The Tribunal in that case considered that no evidence could be called to deal with matters in respect of which the sentencing judge made comment, with the exception that counsel could address the Tribunal with respect to inferences that might be drawn from the facts established by the findings of the sentencing judge (at 50).

63    Davies J said of Daniele, Degerli and Gungor that (at 50) (emphasis added):

The cases I have mentioned did not enunciate so strict a rule but merely that, in a case where the conviction was the foundation for the exercise of the discretionary power, no challenge could be made of the fact of the conviction or to the essential facts on which it was based.

64    His Honour went on to state that (at 50-51):

The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significant to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner’s crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether Mr Beckner was such a person as should be allowed to remain in Australia.

65    Further, his Honour said that (at 52):

While rejecting evidence challenging the crime of which the applicant was convicted, the Tribunal should receive relevant evidence going to the issue of deportation.

66    In SRT, Branson, Lindgren and Emmett JJ set aside a decision of the Tribunal and remitted the matter to the Tribunal for redetermination in accordance with the law. In a joint judgment, the Full Court found that, in reviewing a decision to make a deportation order, the Tribunal had reached conclusions that were consistent with it forming a view that, at the respondent’s criminal trial, the jury had been wrongly directed and the applicant had been sentenced on a factual basis not open to the trial judge. In reliance on Daniele and Gungor, the Full Court observed at [25] that: “[i]t is impermissible for the Tribunal to impugn the conviction on which a deportation order is based”.

67    Citing Davies J in Beckner, the Full Court observed that the task undertaken by a sentencing judge is different from that undertaken by the Tribunal in reviewing a decision to make a deportation order (at [39]). The Full Court went on to say (at [40]) (emphasis added):

[W]here the decision to be reached [by the Tribunal] depends on there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

68    At [41] and [45] the Full Court gave consideration to the relevant policy considerations, observing:

[41]    There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.

…

[45] … It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual basis of a conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures.

69    The Full Court expressly rejected a submission that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence (at [42]).

70    At [47] their Honours referred to the reasons of Davies J in Beckner at 50-51 (extracted above at [64]). In their Honours’ view, the reasons of Davies J simply recognise that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing judge will assume greater importance before the Tribunal and that the Tribunal should allow further evidence to be given in relation to those matters that allow them to be considered more fully. Their Honours did not understand Davies J to say that the Tribunal should feel free to disregard the findings or historical facts upon which the sentence was based, in particular, findings as to the circumstances of the commission of the offence.

71    Their Honours concluded at [48] that:

Insofar as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under s 200, the Tribunal erred in law.

72    In Ali, the Minister contended that the Tribunal erred in law by taking into account evidence that the respondent had not committed offences of assault occasioning actual bodily harm and had taken a lesser role in relation to an offence of stealing a motor vehicle than that which he had conceded for the purposes of his conviction and sentence. Those offences were not the offences which specifically empowered the Minister to authorise the deportation of the respondent, but rather, were prior offences committed by the respondent which were relevant to the Tribunal’s review of the deportation order.

73    At [38] Branson J said that:

Policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice. Other relevant matters include the following. A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt. For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of the factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision-maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available that the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.

74    Branson J then asked what, if anything, the subject matter, scope and purpose of the Act, seen in the light of the authorities, suggested about the way in which the above policy considerations should impact on an administrative decision-maker. While her Honour’s analysis was directed at s 200 of the Act as it then was, the analysis is equally applicable to the statutory powers under consideration in the present case. Branson J said at [41]-[45] (emphasis added):

[41]    First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).

[41]    Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).

[43]    Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)          recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and

(b)          limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

[44]    Fourthly, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).

[45]    Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

75    Branson J’s discussion distinguished between a conviction and sentence upon which the power to deport is based, and a conviction and sentence which is not the source of that power. It is only in the latter instance that Branson J identified a limited scope for the Tribunal to impugn or go behind the conviction or sentence.

76    Relying on many of the authorities which have been discussed above, including Daniele, Gungor, SRT and Ali, the Court of Appeal of the Supreme Court of Victoria (Beach, McLeish and Niall JJA) in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155, expressed the applicable legal principles as follows (at [42]) (citations omitted):

The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

77    The judgment of the Court of Appeal in LLF was recently followed by Richards J in Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500 at [53].

Consideration

78    I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:

(1)    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2)    Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

79    The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.

80    Insofar as the applicant submitted that the observations of Fisher and Lockhart JJ in Daniele (at 138-139) stand for the proposition that the Tribunal, in the category of cases covered by the first principle, is entitled to examine for itself facts necessarily found by the jury or findings essential to the imposition of a sentence and to restrict that entitlement would impermissibly introduce a doctrine equivalent to issue estoppel into Tribunal proceedings, those submission must be rejected. When properly considered in their full context, the statements of Fisher and Lockhart JJ upon which the applicant relied assume a different and more nuanced application. In particular, their Honours comments were preceded by the statement that (at 138):

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

81    Their Honours then went on to make the following statement (at 139):

… It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereof in its task of evaluating the conduct of the applicant but not for the purpose of assessing the propriety of the conviction.

82    Having regard to those statements, in my view Sheppard J in Gungor was correct to conclude (at 466) that, in light of what Fisher and Lockhart JJ had said elsewhere, that their Honours’ observations were not “going so far” as to allow the Tribunal to challenge the fact of the conviction or the essential facts on which it was based.

83    I further note that the asserted inconsistency between Gungor and Daniele has not been recognised by any subsequent authority. Indeed, the joint judgment of Branson, Lindgren and Emmett JJ in SRT, in reliance on principles distilled from Daniele, Gungor and Beckner, expressly rejected a submission that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence (at [42]).

84    In my view, as the Full Court’s finding in SRT demonstrates, even if there was some inconsistency between Daniele and Gungor, subsequent authorities have determined that the applicable principle is the first principle described at [78] above.

85    I am not satisfied that the Tribunal misunderstood or misstated the law. The Tribunal’s statement at [43] that it “cannot contradict or go behind a conviction and examine the facts upon which it is based” must be read in context. Critically, the Tribunal went on to say in the second sentence of [43] that:

However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.

86    Albeit stated in different words, read in its totality, the statement at [43] reflects the applicable principle of law. Ground 1 must be dismissed.

87    By Ground 2 the applicant submitted that the applicant’s narrative of what occurred on the day of the offences were matters of context that were not inconsistent with the applicant having been found guilty of the offences, and were therefore matters that the Tribunal was required to have regard to and weigh. I reject that submission.

88    It is relevant to note that the applicant did not tender the transcript of the evidence that the applicant gave before the Tribunal. In the absence of such evidence, the description of the applicant’s evidence given by the Tribunal at [42] may be accepted on its face. That evidence was described by the Tribunal in [42] as being “in [the applicant’s] words” and was effectively a bare assertion that the applicant had acted in self-defence, had not wielded a metal bar, and that the applicant disagreed, in a general sense, with the facts found by the trial judge.

89    As already stated, the present case falls within the first principle as the conviction is the foundation for the exercise of power by the Tribunal. Accordingly, the Tribunal was entitled to review the circumstances of the conviction for a purpose other than impugning the conviction itself. The Tribunal was not entitled to review the essential facts upon which the applicant’s conviction or his sentence were based.

90    It is apparent that the information that the applicant put before the Tribunal, if accepted and taken into account, would have involved the Tribunal departing from the essential facts necessarily found by the jury and those found by the trial judge.

91    The evidence that the applicant “tried to break up a fight” and “acted in self-defence when approached in a threatening manner” is necessarily inconsistent with the facts that the jury must have found to have convicted the applicant and the trial judge’s sentencing remarks that neither of the victims said or did anything which might have provoked the attack upon them, and that all four men went to the house on that afternoon with the specific intent of inflicting harm on one of the victims (albeit their motivation for doing so was unclear).

92    Similarly, the applicant’s evidence that he “had little to do with the second assault” is fundamentally inconsistent with the facts that the jury must have found to have convicted the applicant and the trial judge’s sentencing remarks that he was satisfied that the applicant was culpable for the charges of unlawful wounding and the most culpable of the four men convicted in terms of the injuries inflicted.

93    Counsel for the applicant conceded, correctly in my view, that the applicant’s evidence that he “did not use the metal bar” is inconsistent with the finding of guilt and the trial judge’s unequivocal remarks that the applicant had wielded the metal bar in the attacks.

94    The applicant further contended by Ground 2 that the Tribunal was required to engage with the applicant’s evidence and determine whether it was true or false before using that evidence as indicative of a lack of remorse or contrition. That contention must also be rejected.

95    Given that the applicant’s evidence was evidence that sought to challenge facts essential to the conviction and sentence, the Tribunal was neither permitted nor required to assess the truth or falsity of that evidence. It did not fail to exercise its jurisdiction by not undertaking that assessment as the applicant contended. The Tribunal was entitled to treat the applicant’s evidence as false because that evidence was inconsistent with facts that the Tribunal was required to treat as true. That exercise involved no irrationality or illogicality. Contrary to the applicant’s contention, the Tribunal’s engagement with that evidence for the purpose of demonstrating a lack of contrition or remorse involved no error. Ground 2 must be dismissed.

Ground 3

96    Ground 3 focusses attention on the findings recorded by the Tribunal regarding the applicant’s mental health and his ability to access mental health services on return to Sri Lanka. The applicant submitted that the Tribunal erred by making findings of fact that the applicant would be able to access mental health services in Sri Lanka. The applicant submitted that there was no evidence to support those findings and/or that the Tribunal’s findings were irrational or illogical.

97    It is convenient to first set out the Tribunal’s reasoning in relation to the applicant’s mental health issues. These were addressed at [106]-[115] of the Tribunal’s reasons in the context of discussing whether there were any other considerations for why the cancellation decision should be revoked.

98    The Tribunal identified the applicant’s mental health as a further consideration that must be addressed (at [107]), and having accepted that the applicant suffered from mental health disorders (at [109]), went on to consider what mental health services would be available to the applicant if he was returned to Sri Lanka (at [110]). The availability of those services was identified as relevant to the following matters: Australia’s non-refoulement obligations; the extent of impediments faced by the applicant if he is removed; and the applicant’s medical health generally (at [110]). In relation to the applicant’s medical health, the Tribunal noted that a secondary consideration in determining whether to revoke a decision to cancel a visa is whether an applicant with a mental health condition will be denied mental health services (at [110]).

99    The Tribunal observed that it had received “surprisingly few submissions” in relation to the mental health services available to the applicant in Sri Lanka from the applicant’s counsel or the Minister (at [111]). Further, the Tribunal noted that this was not a matter canvassed in detail in the non-revocation decision (at [112]).

100    The Tribunal set out the relevant country information provided to the Tribunal at [113] as follows:

2.13    Sri Lanka spends approximately 3.5 per cent of GDP per annum on health. Universal, free health care is available through the public sector health system but facilities vary and some medicines or treatments may need to be purchased from private providers. According to the World Bank, life expectancy in Sri Lanka in 2015 was 74.8 years of age and the infant mortality rate was 8.4 per 1,000 live births. Health outcomes tend to be worse in the north and east, partly as a result of the destruction of infrastructure and diminution of human capital during the conflict.

2.14    Mental health services are scarce and there is general lack of institutional capacity to respond to mental health care needs. Mental illness is not widely discussed in Sri Lankan society; this can act as a barrier against individuals seeking proper treatment. Anecdotally, DFAT understands that the prevalence of trauma-related illnesses following the civil conflict is high, especially in the Northern Province. There has reportedly been a rise in substance abuse (both drugs and alcohol) in the Northern Province. DFAT understands that collective trauma and an absence of effective coping mechanisms, coupled with high unemployment, especially amongst the youth population, have contributed to the increase in substance abuse.

101    The Tribunal then set out its findings at [114] (emphasis added):

Having reviewed the evidence before it, the Tribunal finds that although HZCP will face significant challenges accessing mental health care if returned to Sri Lanka, he will, nonetheless, be able to do so. Importantly, mental health services will not be withheld by the current government. Difficultly accessing limited resources does not amount to persecution if those services can ultimately be accessed. There is no evidence before the Tribunal to suggest that HZCP will not be able to access available mental health services in Sri Lanka if he were returned to that country. While those services would not be of the standard he would receive in Australia, it is not the case that he will be denied the services that are available or that services of the sort required are simply not available to him and others. Nor will he be denied mental health assistance because of his Tamil ethnicity. The challenges he will face will be real and they are [not] insignificant. However, they are not challenges that will result in the types of harm that trigger any non-refoulement obligations in that regard or which outweigh any of the primary considerations in Direction No 65 outlined above.

102    The Tribunal concluded at [115] that the applicant’s mental health issues did not favour revoking the cancellation decision.

103    The applicant first submitted that there was “no evidence” before the Tribunal to support a positive finding by the Tribunal that, despite challenges accessing mental health care if returned to Sri Lanka, the applicant would “nonetheless, be able to do so”.

104    Further and in the alternative, the applicant submitted that the Tribunal’s findings were illogical or irrational because they were directly contrary to the evidence before the Tribunal. The essence of the applicant’s submission was that it was irrational or illogical for the Tribunal to make a positive finding of fact that the applicant, while facing challenges, would nonetheless be able to access mental health services in circumstances where the Tribunal had accepted related evidence that mental health services in Sri Lanka are scarce and that there is a general lack of institutional capacity to respond to mental health care needs in Sri Lanka.

105    Both submissions should be rejected. Both are founded on a misapprehension of the finding made that the applicant “will” be able to access mental health care. That finding deals with a future event and can only sensibly be viewed as describing what the Tribunal regarded to be probable or likely. Understood in that way, the Tribunal’s reasons reflect its finding that, in circumstances where the Tribunal had found that health care was free and universally available in Sri Lanka, mental health services were available and access to those services was not selectively denied based on ethnicity, the applicant would likely be able to locate mental health care services and would not face official discrimination in obtaining access to those services because of his Tamil ethnicity.

106    There was some evidence before the Tribunal to support the probability or likelihood of mental health services being accessed by the applicant should he be returned to Sri Lanka. That evidence included the country information cited by the Tribunal at [113] (extracted at [100] above). A “skerrick” of evidence to support the Tribunal’s conclusion would suffice to reject a “no evidence” challenge: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] (Murphy J); Australian Postal Corporation v D’Rozario [2014] FCAFC 89 at [118] (Bromberg J).

107    Secondly, the fact that there was evidence of the availability of mental health services which the applicant could access (despite qualifications as to its extent) provided a rational basis for the conclusion that the applicant would likely get access to those services. Even if it were the case that the Tribunal’s assessment of probability was wrong that would not establish illogicality or irrationality. A rational and logical decision maker could have come to the same conclusion as the Tribunal on the material that was before it: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [135] (Crennan and Bell JJ). Ground 3 must be dismissed.

Conclusion

108    The application must be dismissed. There being no submission made that costs should not follow the event, it is appropriate that the applicant pay the Minister’s costs of the application.

Associate:

Dated:    20 November 2018