FEDERAL COURT OF AUSTRALIA

GPO18 v Minister for Home Affairs [2019] FCA 1067

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent dated 22 November 2018.

2.    A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter in accordance with law.

3.    The first respondent pay the costs of the applicant.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made under s 500(1)(ba) of the Act on 22 November 2018.

2    The applicant was born in, and is a citizen of, Thailand. She first came to Australia for a holiday in 2006. In 2007 she returned on a student visa in order to learn English. In 2008 she married an Australian citizen and in 2010 she was granted a Class BS Subclass 801 Partner (Residence) visa.

3    The applicant has been convicted of a number of criminal offences. These include a conviction for cultivating a narcotic plant (cannabis) in a commercial quantity, for which the applicant was sentenced to imprisonment for a period of two years and six months.

4    On 16 January 2017, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision on 16 January 2017, and was invited to make representations about the revocation of the decision to cancel her visa. The applicant made representations in response to that invitation.

5    On 31 August 2018, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. On 3 September 2018, the applicant was notified of the delegate’s decision and provided with a copy of the decision and the attachments thereto.

6    On 12 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision under s 500(1)(ba) of the Act. On 12 and 13 November 2018, the applicant appeared before the Tribunal with the assistance of an interpreter to give evidence and present arguments. On 22 November 2018, the Tribunal affirmed the delegate’s decision. At the request of the applicant, and without opposition from the Minister, the Tribunal made a confidentiality order in relation to the applicant’s identity, prohibiting the publication of the applicant’s name and material tending to identify her. Those orders have been respected in the hearing before me and name of this proceeding uses a pseudonym.

7    On 28 December 2018, the applicant filed an originating application in this Court seeking review of the decision of the Tribunal. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in her originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law. On 30 April 2019, the applicant filed a further amended originating application, amending its grounds of review. The Minister did not oppose a grant of leave to make the amendments and I therefore gave leave for those amendments to be made.

8    For the reasons that follow, I find that the Tribunal erred in affirming the delegate’s refusal to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Act.

Background

9    The following summary of the factual background is largely taken from the decision of the Tribunal, based on the evidence given by the applicant before the Tribunal. As explained below, while the Tribunal recited the evidence given by the applicant, it did not make factual findings in respect of much of that evidence. Accordingly, the following summary records evidence given by the applicant, not facts found by the Tribunal. Where relevant, the following summary also refers to remarks made by Hampel J of the County Court of Victoria when sentencing the applicant for certain offences on 15 July 2016, and some reference is also made to three prior statements of the applicant: the first in May 2008 which was submitted to the Department in connection with a Partner visa application; the second in a Statutory Declaration made on 16 October 2017 for the purposes of the revocation decision; and the third in a written statement prepared for the Tribunal hearing.

10    The applicant was born in Thailand in 1977. She grew up in the city of Sukothai, Thailand, a city around 4 hours’ drive from Bangkok. She has one younger brother, who lives in Thailand with her parents. At the hearing before the Tribunal, the applicant gave evidence that she had a difficult upbringing and had a troubled relationship with her mother, who the applicant said could be violent at times. In the County Court of Victoria criminal proceedings, evidence was given to the effect that the applicant had told a psychologist, Gina Cidoni, that she had enjoyed a happy, normal childhood in relatively comfortable circumstances.

11    At the age of about 15 or 16, the applicant moved to Bangkok, where she met and began a relationship with Mr BW. She lived with BW for one year before they separated, after which the applicant learned that she was pregnant. In 1998, she gave birth to her son, NK. The applicant’s son was raised by the applicant’s grandparents in Sukothai. The applicant gave evidence that her parents were sentenced to 13 years and 8 months in prison for drug-related offences in 1999. In 2004, BW died. During this period, the applicant worked in Bangkok in an office and completed a Diploma of Accounting.

12    As noted above, the applicant first came to Australia for a holiday in 2006. The applicant next came to Australia in 2007 on a student visa, aged about 30. She worked in a restaurant and a factory in Sydney, and also worked in what she described as a massage shop and that this work sometimes included the provision of sexual services. The applicant met Mr CO during her employment at the massage shop and they subsequently married on 4 March 2008. CO is a Turkish-born Australian citizen whom the applicant described as “controlling, abusive and violent”. She gave evidence that CO forced her to engage in sex work.

13    On a date that is not clear from the applicant’s evidence, the applicant and CO returned to Thailand and lived with the applicant’s parents in Sukothai. CO then moved to Bangkok and took up with a new girlfriend. In the Statutory Declaration sworn on 16 October 2017, the applicant stated that she separated from CO when he moved to Thailand in 2012. It is difficult to piece together this aspect of the chronology.

14    The applicant gave evidence before the Tribunal that she first started taking drugs in 2012 due to her long working hours. She also gave evidence that she had been diagnosed in Australia with a brain tumour in 2013. She then began regularly using drugs in 2013, which the applicant claimed she did to cope with the stress caused by her brain tumour diagnosis and the sexual assault she endured as part of her work. She started using methylamphetamine (ice) and cocaine, but denied using heroin. The applicant was prescribed a course of medication for the tumour for 1 year and has subsequently been advised that the tumour is benign.

15    In late 2013, the applicant met Mr HN as a client and they commenced a relationship. They moved in together to an apartment in Southbank, Melbourne, which was leased in the applicant’s name. In 2014, the applicant brought her son, NK, to Australia because her grandparents were no longer able to care for him. At about that time, the applicant and HN moved to a property in Truganina, Victoria.

16    On 24 September 2014, Victoria Police executed a warrant on the Southbank apartment and seized a large number of cannabis plants. On 30 September 2014, during the course of a police interview, the applicant admitted that she was aware of HN’s hydroponic equipment located at the Southbank apartment. The applicant was not charged with any offences at the time.

17    The applicant gave evidence that, on 1 September 2015, police stopped the vehicle in which she was travelling with a companion and discovered a number of items which included: a cigarette containing cannabis; a bag containing 1 gram of the drug ice; and, in the applicant’s handbag, a further 3 bags of the drug ice. The applicant was arrested and charged with trafficking in the drug ice, possessing a controlled weapon (a meat cleaver) and dealing in property suspected of being the proceeds of crime. She was released on bail and directed to appear at the Heidelberg Magistrates’ Court on 30 November 2015.

18    On 30 September 2015, Victoria Police executed a warrant on the Truganina residence. The applicant, HN and NK were present. When the police arrived, the applicant was wearing a gardening glove with blackened tips and was carrying gardening shears. Police discovered that two bedrooms of the property were set up as “grow rooms” and that there were 69 cannabis plants at various stages of maturity, weighing approximately 31 kilograms. Police also found various other items at the house including 476.6 grams of dried cannabis, 12 ecstasy tablets, 6.7 grams of the drug ice, an amount of cash, two handguns and a taser. The applicant, HN and NK were arrested. NK was later released without charge.

19    On 15 July 2016, the applicant was convicted by the County Court of Victoria of the following offences: cultivating a commercial quantity of cannabis; possession of a drug of dependence (6.7 grams of the drug ice and 4 grams of ecstasy) (two charges); possession of an unregistered general category handgun (a .38 Colt); and three summary charges including possession of ammunition, a prohibited weapon (a taser) and dealing with $710 suspected of being the proceeds of crime. HN was convicted of cultivating cannabis.

20    In her reasons for sentencing, Hampel J noted that:

(a)    When arrested, the applicant denied having any involvement in the cultivation of the cannabis, claiming that the plants belonged to HN. Plea discussions began, but the matter did not resolve at that stage and ultimately a contested committal hearing was scheduled for both defendants. By the time of the committal hearing, admissions were made by both defendants resulting in the convictions.

(b)    The applicant had no previous convictions. However, she was facing charges arising out of the events on 1 September 2015, recorded above.

(c)    HN had received a community corrections order arising out of the discovery of the cannabis crop in the Southbank apartment, referred to above. HN had also been convicted of trafficking in heroin in 2007.

(d)    At the sentencing hearing, the applicant no longer asserted that the cannabis crop belonged to HN. Through her counsel and a psychologist who filed a report, Ms Gina Cidoni, the applicant stated that she was cultivating the cannabis crop in order to support her ice habit. She also claimed that the ice and ecstasy, although of traffickable quantities, were for her own use. Her counsel stated that the applicant had instructed that she was keeping the gun for another person.

(e)    The applicant stated that both she and HN were ice users. Their relationship had become violent and they had broken up for some months, before resuming the relationship some months before their arrest.

(f)    Submissions were made on behalf of HN to the effect that: the cannabis crop belonged to the applicant; he did not stand to gain any benefit from it; and his involvement was limited to allowing the applicant to continue cultivating the crop in his house after he became aware of it.

21    Judge Hampel expressed concerns about accepting unsupported assertions as to the respective roles of the applicant and HN in respect of the cultivation of the crop. Having heard submissions made on behalf of both defendants, her Honour stated that there was an air of artificiality or unreality about what was put on behalf of both defendants about their involvement and their respective roles. Her Honour stated that she had doubts that the crop was solely the applicant’s and that she was solely in possession of the firearm, ammunition and taser having regard to the ownership of the house by HN, the manner in which the house was set up to grow the crop and the presence of both defendants when the search warrant was executed. Her Honour expressed a sense of unease that the applicant was taking sole responsibility for what was, at the very least, a shared venture. Judge Hampel asked counsel for the applicant whether his client’s pleas were entered in the exercise of free choice and were fully informed. Counsel responded by stating that the charges before the court were the result of negotiations conducted over a number of months, where the ground shifted a number of times and which were ultimately resolved. He said that the applicant was represented at all times but, as far as he knew, the applicant was fully informed, aware of the case against her and her options. Counsel said that he was unaware of any pressure being brought to bear on the applicant by anyone. Judge Hampel accepted what counsel said and, despite her Honour’s concerns about the position of the applicant, proceeded to sentence her on the basis that she had been independently represented, well and fully advised and must be taken to have entered her pleas in the exercise of a free and informed choice. Her Honour made the following observations (at [60]-[64]):

[60] According to what you told the psychologist, Gina Cidoni, who assessed you for the purposes of the plea, you have had, in Thailand, before you came to Australia, what you described as a happy, normal childhood in relatively comfortable circumstances. You reported being shocked to discover that your parents were charged with and subsequently imprisoned for 14 years for drug trafficking when you were aged 20.

[61] You told Ms Cidoni that you came here on a student visa, but despite that, seemed to have worked for much of your time here as a sex worker. You married after your arrival in Australia, but told her that it was an unhappy and abusive relationship and that you were forced to remain in sex work, not only to send money home to your family in Thailand, but to also to (sic) assuage the demands of your estranged husband, who was threatening to imperil your resident status. Apparently a divorce is pending but not finalised.

[62] You reported that you met [HN], who was initially a customer at the brothel where you were working, and that the two of you formed a relationship which was marred and marked by the mutual use of methamphetamine. You reported being subjected to violence and paranoid and jealous behaviour. The relationship broke up, then resumed in the months leading up to your arrest. According to you, it is now over.

[63] Based on what you told Ms Cidoni, you came to drug use only recently and your use of ice escalated when you met Mr Nguyen. She reported the relationship as tumultuous and she considered your judgement was seriously impaired when you began offending. According to Ms Cidoni, you present as naïve, gullible and easily led. Although Ms Cidoni notes that ice use is associated with increased autonomic activity, perceptual disturbances such as delusions, hallucinations and bizarre mentation and behaviour and psychological changes, such as agitation and affective blunting and impaired judgement, as they are the result of your ice use, they are not mitigating factors.

[64] Ms Cidoni’s assessments of you were limited by poor language, despite the assistance of an interpreter. On the limited testing that she was able to do, she concluded that there was evidence of emotional disturbance with chronic depression, anxiety and interpersonal sensitivity, signs of thought disorder and paranoid ideation, possibly linked with your history of abuse of methamphetamine and other substances. She considered your cognitive function to be at borderline level. It is difficult to work out from her report whether that was due to language difficulties or your depression, anxiety and acute distress at the time of the conducting of the assessment. There did not seem to be, on my reading of her report, a finding of impaired intellectual capacity. Ms Cidoni did note that your acute distress related to the circumstances you now found yourself in.

22    In considering the applicant’s prospects of rehabilitation, her Honour concluded (at [69]):

I consider the consequences already visited on you already (sic) count as significant personal deterrents and that your prospects for rehabilitation should be regarded as good. So far as the other offences are concerned, I consider it is likely that you possessed the other drugs, as you instructed, for your own use and that you were able to buy them in greater than single use quantities, by reason of your cultivation activities.

23    Judge Hampel sentenced the applicant to 3 years and 3 months, with a non-parole period of 1 year and 6 months. The applicant sought leave to appeal her sentence on the grounds that it was manifestly excessive and that the sentencing judge had erred in imposing the maximum penalty on summary charge 13 (commission of an indictable offence whilst on bail) notwithstanding the applicant’s guilty plea. The Court of Appeal allowed the appeal and resentenced the applicant to 2 years and 9 months’ imprisonment, with a non-parole period of 1 year and 3 months.

24    On 23 December 2016, the applicant also appeared before the Heidelberg Magistrates Court and was convicted of several offences (arising from the 1 September 2015 charges): possession of a traffickable quantity of the drug ice; possession of a controlled weapon without excuse; and dealing with property suspected of being the proceeds of crime. The sentence for these convictions was fixed at an aggregate 42 days’ imprisonment, which was to be served concurrently with the sentence given in the County Court proceeding.

25    In the applicant’s statutory declaration dated 16 October 2017, the applicant stated that she pleaded guilty to the “Truganina” charges because HN told her that, if she admitted guilt, he and his family would take care of her son while she was in prison. She also stated that she was told by her lawyer that if she pleaded guilty she would not go to jail for long and would be back with her son in less than 1 year. In her written statement prepared for the Tribunal hearing, the applicant repeated the statements that HN’s family came to see her in prison and told her that if she admitted the charges they would look after her son.

Legislative Provisions

26    Section 501(3A) of the Act provides that the Minister (or a delegate) must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

27    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

28    Section 501CA of the Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

29    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 22 December 2014 the then Minister made a direction titled “Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65) which came into force on 23 December 2014.

30    Paragraph 6.3 of Direction 65 provides as follows:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

. . .

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

31    Paragraph 7(1)(b) of Direction 65 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

32    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen’s visa, are articulated in Part C). Paragraph 8(3) of Direction 65 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

33    Part C of Direction 65 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into “primary considerations” and “other considerations”.

34    Paragraph 13(2) of Direction 65 provides that the following considerations are “primary considerations”:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    the best interests of minor children in Australia; and

(c)    expectations of the Australian community.

35    Paragraph 13.1 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(a), provides as follows:

13.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

   (2)    Decision-makers should also give consideration to:

(a)    The nature and seriousness of the non-citizen’s conduct to date; and

(b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

. . .

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

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

(2)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

36    Paragraph 13.3 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(c), provides as follows:

13.3 Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

37    Paragraph 14(1) of Direction 65 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker where relevant. These considerations include, but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

Tribunal proceedings

38    As noted earlier, on 12 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision under s 500(1)(ba) of the Act and, on 12 and 13 November 2018, the applicant appeared before the Tribunal with the aid of an interpreter to give evidence and present arguments. The applicant was self-represented, but filed submissions that had been prepared on her behalf by counsel.

39    On 22 November 2018, the Tribunal delivered its statement of decision and reasons, affirming the delegate’s decision to refuse to revoke the cancellation of the applicant’s visa. It will be necessary to refer to some aspects of the Tribunal’s reasons in detail when discussing the applicant’s grounds of review. Some general observations about the reasons follow.

40    At [25]-[28] under the heading “GWSC’s contentions”, a summary of what the Member understood to be the applicant’s contentions was presented. The grounds of review include a contention that the Tribunal failed to consider a clearly articulated argument of the applicant. It will be necessary to return to that issue, having regard to the Tribunal’s summary of the applicant’s contentions and its consideration of specific issues under Direction 65.

41    At [29]-[33] under the heading “GWSC’s evidence”, the Member summarised the evidence given by the applicant. However, this section of the Tribunal’s reasons does not contain any statement of the factual findings made by the Tribunal. Subsequent parts of the Tribunal’s reasons contain findings on specific matters, but there is no finding about several matters central to the applicant’s evidence and submissions: that the applicant had been the victim of violent and abusive domestic relationships; that her partners had forced her to work in the sex industry; and that her drug taking had been a response to the long hours she was working and the sexual assaults she endured in her work in the sex industry.

42    At [34]-[40] under the heading “Background to the convictions”, the Member summarised the circumstances of the applicant’s criminal offending. At [38]-[40], the Member referred to the applicant’s evidence given under cross-examination at the Tribunal hearing about the offending. The Member observed that the applicant admitted that she had bought drugs “one time” from “an associate”. When the applicant was shown extracted text messages which appeared to be between this associate and herself, she said she could not remember the exchanges and initially denied that a mobile phone seized by the police, a photograph of which was tendered in evidence before the Tribunal, was hers, a position she later changed in evidence.

43    The applicant also gave evidence that the two handguns found by police at the Truganina residence on 30 September 2015 belonged to HN, not to her. She said that the taser found by police was not hers but accepted that the ecstasy tablets and bags containing the drug ice found in various parts of the property were hers. When the applicant was asked why she had pleaded guilty in the County Court proceeding to the charges of possession of firearms (the handguns) and possession of a prohibited weapon (the taser) when she was now denying that those weapons belonged to her, the applicant said she had not understood the paperwork which her lawyers provided to her when she entered her guilty pleas in the County Court proceeding because she was stressed and her English was not good. The applicant intimated to the Tribunal that she had not been aware of the charges laid against her until she received the National Police Certificate in connection with the present proceeding. Subsequently, at [51], the Member expressed his finding that he was unconvinced by the applicant’s claims that she did not understand what she had been charged with and was unpersuaded that her admissions in the County Court were not freely made.

44    The Member then dealt with each of the considerations set out in Part C of Direction 65 in turn.

45    The first of the primary considerations (paragraph 13.1 of Direction 65) is the protection of the Australian community, which includes the nature and seriousness of the criminal conduct (paragraph 13.1.1 of Direction 65) and the risk to the Australian community should the applicant commit further offences (paragraph 13.1.2 of Direction 65). In respect of the former, the Member observed that the offences for which the applicant was convicted are objectively serious, but was troubled by the applicant’s partial denial in the Tribunal proceeding of certain elements of the offences for which she pleaded guilty in the County Court proceeding. The Member observed that Hampel J had considered the question whether the applicant’s guilty pleas were fully informed and the result of a free choice, but had concluded that the applicant should be treated as having intended to cultivate not less than a commercial quantity (at [47]). The Member noted that Hampel J had referred to the conclusions of Ms Cidoni, the psychologist who had assessed the applicant for the purposes of entering her plea, that she was “naïve, gullible and easily led”, but did not find that the applicant had any impaired intellectual capacity and, as a consequence, the effects of taking the drug ice, such as agitation and impaired judgement, were not found to be mitigating factors (at [48]). The Member was unconvinced by the applicant’s claims that she did not understand what she had been charged with and was unpersuaded that her admissions were not freely made before the County Court (at [51]). The Member concluded (at [52]) as follows:

It is true that GWSC did not have a history of offending and indeed had not committed any offences for around the first five years of being in Australia. However, when a person is convicted of drug offences relating to cultivation in commercial quantities, this is a category of offence more serious than possession or personal use of an illicit substance. The Parliaments of Australia have passed laws reflecting that fact, because the logical consequence of commercial cultivation is trafficking and the exacerbation of the drug scourge in our society.

46    In respect of the risk to the Australian community should the applicant re-offend in future, the Member concluded that the applicant’s risk of re-offending was moderate (at [57]). Three of the grounds of review concern this section of the Member’s reasons and it will be necessary to return to this aspect of the Tribunal’s reasons.

47    Overall, the Member concluded that the primary consideration in paragraph 13.1 of Direction 65, being the protection of the Australian community, weighed against revoking the mandatory cancellation of the applicant’s visa (at [58]).

48    The Member concluded that the second of the primary considerations, best interests of minor children in Australia (paragraph 13.2 of Direction 65), was not applicable (at [59]).

49    The third of the primary considerations is the expectations of the Australian community (paragraph 13.3 of Direction 65). The Member observed that Direction 65 states (at paragraph 13.3(1)) that the Australian community expects non-citizens to obey Australian laws whilst in the country (at [60]). At [62], the Member noted the Minister’s reliance on the remarks of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), where her Honour made the following observations about that primary consideration (at [76], [77]):

In substance this consideration is adverse to any applicant.

…

It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).

50    The Member discussed that conclusion in the following terms (at [62]):

The Tribunal, with respect, agrees with this conclusion; however, properly construed, the weight of this consideration in the Direction may nevertheless undulate significantly according to the context and circumstances in which a non-citizen’s offending has occurred. The Tribunal concludes that members of the Australian community, properly informed, would adopt an unfavourable view of what is on the evidence a well-planned illicit drug growing enterprise, given the pernicious impact the illegal drug trade has on society. Adding to that [the applicant’s] separate convictions for possessing weapons and for trafficking in the drug ice, this consideration weighs strongly towards not revoking the mandatory cancellation of the visa.

51    The Member then turned to consider the “other considerations” set out in paragraph 14(1) of Direction 65.

52    In respect of the strength, nature and duration of ties to Australia (paragraph 14.2 of Direction 65), the Member concluded that this consideration weighed in favour of revoking the cancellation (at [69]).

53    The parties did not address the impact on Australian business interests (paragraph 14.3 of Direction 65) and the Member concluded that it was not relevant (at [70]).

54    The parties did not address the impact on victims (paragraph 14.4 of Direction 65) and the Member did not address this consideration (at [71]).

55    The applicant made submissions concerning the impact on her if she were to be returned to Thailand, which the Member considered under the topics of international non-refoulement obligations (paragraph 14.1 of Direction 65) and the extent of impediments if removed (paragraph 14.5 of Direction 65). The Member concluded (at [79]) that this consideration in Direction 65 weighed neutrally in terms of revoking the mandatory cancellation of the visa.

56    Ultimately, the Member affirmed the decision under review. The Member expressed his conclusions in the following terms:

[80] The Tribunal has carefully considered all the considerations in the Direction. The Tribunal is not bound only to these considerations, and may consider other factors relevant to the general circumstances of [the applicant], in the context of whether there is another reason to set aside the mandatory cancellation of her visa. The Tribunal finds that the considerations which weigh against revoking the mandatory cancellation of the visa outweigh the considerations which weigh in the opposite direction.

[81] The fact remains that [the applicant] has admitted to, and been convicted of, serious crimes and it is the Tribunal’s conclusion that the decision not to revoke the mandatory cancellation of her visa, taking into account all the evidence and the written and oral submissions made before the Tribunal, was the correct decision. The Tribunal does not find that there is another reason why the mandatory cancellation of the visa should be revoked.

Grounds 1 to 3

57    Grounds 1 to 3 all concern the Tribunal’s findings with respect to paragraph 13.1.2 of Direction 65: the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. It is necessary to set out in full the Tribunal’s findings:

[53] The Direction requires decision-makers to consider the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. While the Tribunal considers that [the applicant’s] expressions of apology about her conduct were genuinely made, it is clear that she has been, as the assessing psychologist concluded, gullible in her past conduct. It may be the case that she had been led into her offending by association with dominating partners, but there is no evidence before the Tribunal that that vulnerability is not still present.

[54] Matthews J (sitting as a Presidential Member of the Tribunal) said in Re: Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431, at [51]:

Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending…

[55] The fact that [the applicant] committed further criminal offences whilst on bail shows disregard for the law in Australia. Her dissimulation under cross-examination at this hearing, about elements of what happened in the past relating to various convictions, especially about text messages that may implicate her in the sale or at least provision of drugs to others, inclines the Tribunal to conclude that there is a risk of re-offending. [The applicant] was not frank about large parts of the circumstances of crimes to which she has pleaded guilty. The Respondent’s written submissions were:

    The fact that the applicant pleaded guilty to cultivation of cannabis, yet has subsequently disputed her culpability by stating that she only pleaded guilty at the behest of [Mr HN], suggests that she is trying to downplay her criminal responsibility and that there is more than a remote risk of recidivism. Further, the offences which led to the November 2016 sentences were committed while the applicant was on bail for the 1 September 2015 offences. The applicant’s conduct suggests that she has a disregard for Australian laws generally and underscores the risk that she would engage in further unlawful conduct.

In oral submissions Ms Nyabally submitted that there was a “small but appreciable” risk that [the applicant] will re-offend.

[56] It is to [the applicant’s] credit that she has sloughed off her drug habit whilst in prison, and her statements to this effect were corroborated by urinalysis reports. The Tribunal considers she fully appreciates the personal consequences that her drug-taking had upon her. However, what was not stated was an understanding of the wider harm to the community of engaging in such activities. It was particularly disturbing that [the applicant] admitted driving her then teenaged son to school while affected by ICE, an action that might have had catastrophic results for her, Mr NK and innocent members of the community, had she caused a motor vehicle accident.

[57] The Tribunal does not accept the Respondent’s submission of a “small but appreciable” risk of re-offending. The risk of re-offending may be reduced because of the counselling [the applicant] had in prison and the impressive number of courses she has successfully completed. This risk may be further reduced if [the applicant] had more stable accommodation and employment. However, because of her criminal history and gullibility, there is still a risk that I conclude is, at the very least, in all the circumstances, moderate.

58    It is apparent from the Tribunal’s reasons that the Tribunal took into account a number of factors in reaching a conclusion that the applicant’s risk of re-offending was, at the very least, moderate. Those factors were:

(a)    the applicant has been gullible in her past conduct (at [53] and [57]);

(b)    the Tribunal stated that “it may be the case” that the applicant had been led into her offending by association with dominating partners (at [53]), but found there was “no evidence before the Tribunal that that vulnerability was not still present”;

(c)    the applicant had committed the drug offences for which she was imprisoned (at [55]);

(d)    the applicant had committed those offences whilst on bail (at [55]);

(e)    the applicant was not frank about the circumstances of crimes to which she had pleaded guilty (at [55]); and

(f)    the applicant failed to show an understanding of the harm to the community from her criminal conduct (at [56]).

59    The Tribunal also took into account, as reducing the risk of re-offending:

(a)    the applicant’s expressions of apology (at [53]); and

(b)    that the applicant had broken her drug habit whilst in prison (at [56]).

Applicant’s submissions

60    By ground 1, the applicant contended that the Tribunal denied the applicant procedural fairness by failing to put the applicant on notice of a matter adverse to her review application, being the finding that the applicant’s past conduct demonstrated her “gullibility”. By ground 2, the applicant contended that the Tribunal denied the applicant procedural fairness by failing to consider the applicant’s submission that she did not pose an unacceptable risk of re-offending because she had abstained from elicit substances over a prolonged period, she was no longer in a violent relationship and she had been seeking professional assistance from a psychologist since 2016 to address her mental health issues. By ground 3, the applicant contended that the Tribunal’s decision was legally unreasonable, or was irrational or illogical, because the Tribunal had failed to identify or explain the applicant’s “vulnerability” referred to at [53]. Overall, the applicant’s challenge to this part of the Tribunal’s decision can be summarised as follows: the Tribunal failed to address a central submission of the applicant as to the cause of her offending, instead basing its decision on a finding of “gullibility” in circumstances where she was not on notice that that was an issue and, further, the finding of gullibility had no rational or logical connection with the applicant’s offending.

61    In respect of ground 1, the applicant submitted that procedural fairness required the Tribunal to put the applicant on notice of adverse issues in the review not obviously open or apparent from the material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]-[43] (SZBEL). The applicant argued that the Tribunal's conclusion that the applicant's risk of re-offending was moderate rested on its finding of “gullibility” on the part of the applicant. The issue of “gullibility” was significant because it formed the basis on which the Tribunal departed from the Minister's submission that the risk of re-offending was small. The Tribunal denied the applicant procedural fairness by not putting her on notice that her purported gullibility increased her risk of re-offending.

62    The applicant further argued that the finding of gullibility was not obviously open on the known material. The issue had not previously arisen in the County Court sentencing, the Court of Appeal, or in the decision of the Minister’s delegate. The only reference to gullibility was in the sentencing remarks of Hampel J, when her Honour cited the report of Ms Cidoni, a psychologist. Her Honour did not herself make any finding that the applicant was gullible. Further, her Honour found that the applicant had good prospects of rehabilitation. The Court of Appeal also referred to that aspect of Ms Cidoni's report in the sentencing appeal judgement (at [31]; note that I have not given the citation of the Court of Appeal decision as it would identify the applicant). The applicant observed that the Minister’s delegate did not refer at all to the notion of “gullibility” in its decision, either implicitly or explicitly, instead linking her offending to her drug use and emotional and physical vulnerability. The Minister’s delegate made the following finding:

[25] I have considered that [the applicant’s] offending was linked to the use of illicit drugs during a period of emotional and physical vulnerability. I recognise [the applicant’s] efforts to address her personal issues by undertaking various educational courses and withdrawing from drugs. However, her rehabilitation including the application of new coping mechanisms acquired through her trauma counselling have yet to be tested in the community. Accordingly, there remains the ongoing risk that she may relapse into drug use, thus exposing her vulnerabilities and may result in her engaging in illegal activities.

63    In respect of ground 2, the applicant contended that the Tribunal is required to afford an applicant procedural fairness which, in the context of s 501(4) of the Act, requires the Tribunal to consider the applicant's representations as a whole: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [18], [27] and [49] (Maioha). If the Tribunal fails to consider a substantial and clearly articulated argument as to why there is another reason the visa should be revoked which if accepted would or could have been dispositive, the Tribunal may commit jurisdictional error: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47] (DRP17); Maioha at [31]-[49]. The applicant contended that the Tribunal failed to make a finding on the issue of whether the applicant had a vulnerability to dominating partners or not, instead merely suggesting that it was a possibility. The Tribunal also failed to explain the basis of the applicant's purported “vulnerability” to dominating partners. Without identifying the basis of any perceived vulnerability, the applicant submitted, the Tribunal could not meaningfully assess whether that vulnerability still existed. The applicant observed that if the vulnerability was psychological, it may have been addressed by the counselling sessions conducted by the applicant’s psychologist. The applicant argues that the Tribunal denied the applicant procedural fairness by effectively failing to consider the applicant's argument regarding the relationship between domestic violence and her offending. The Tribunal made no findings as to whether the violent relationships led to the offending, whether the applicant did in fact have a vulnerability to these relationships, why she had such vulnerability, and consequentially whether that notional vulnerability had been addressed. As a result, the applicant's submission remained unanswered.

64    In respect of ground 3, the applicant contended that the Tribunal's assessment may involve jurisdictional error if its conclusion or reasoning lacks a rational, logical or probative basis: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] (SZMDS). The Tribunal's decision may involve a jurisdictional error if a finding by the Tribunal “along the way” to its ultimate conclusion is irrational or illogical: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [54]. The question is whether the Tribunal's conclusions were reasonably open on the reasoning actually relied on by the Tribunal: YNQY at [65]; Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35], [41]-[43] and [55]-[56]. On this ground, the applicant relied on the same submissions as those made on ground 2, to the effect that the Tribunal made no findings as to whether the applicant’s relationships led to the offending, whether she had a vulnerability to those relationships, why she had such vulnerability, and consequentially whether that notional vulnerability had been addressed. The applicant submits that the Tribunal’s reasoning lacked a rational or logical basis.

Minister’s submissions

65    In respect of ground 1, the Minister placed reliance on the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which was cited with approval by the High Court in SZBEL (at [32]). The Minister referred specifically to the following statement of principle by the Full Court (at 591-592):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

66    The Minister argued that the Tribunal complied with the requirements of procedural fairness for the following reasons:

(a)    The applicant had an opportunity to put information and submissions to the Tribunal, both in the form of a statement of facts and contentions and during a hearing that ran for two days.

(b)    The Tribunal did not rely on adverse material from “other sources” that were not known to the applicant. As noted above, the reference to the applicant being “naïve, gullible and easily led” came from the sentencing remarks of Hampel J. Not only was the applicant present when she was sentenced, those remarks were provided to the applicant as an attachment to the delegate’s decision and included in the “G” documents provided to the Tribunal (a copy of which was also provided to the applicant).

(c)    The Tribunal identified to the applicant the relevant issue that was critical to its decision: namely, the risk of the applicant re-offending. The relevance of that issue was plain from Direction 65. That issue was addressed by the applicant in her statement of facts and contentions provided to the Tribunal.

(d)    The conclusion that the applicant was “naïve, gullible and easily led” was open on the known material - that was precisely the finding made by the psychologist referred to in the sentencing remarks. It was also open to find that the applicant’s risk of re-offending was increased by her being “naïve, gullible and easily led”.

67    The Minister contended that grounds 2 and 3 proceed on a misunderstanding of the nature of the “vulnerability” to which the Tribunal referred at [53]. In the Minister’s submission, the “vulnerability” was that, because the applicant was “naïve, gullible and easily led”, and had in the past been led by others into criminal conduct, there was a possibility that this could occur again in the future. The statement that “there is no evidence before the Tribunal that that vulnerability is not still present” should be understood as a statement that there was no evidence that the applicant was no longer a person who is easily led. It should not be understood as a statement that the applicant was still in a relationship with either her ex-husband or her co-offender.

68    In respect of ground 2, the Minister placed reliance on the recent decision of Allsop CJ in Navoto v Minister for Home Affairs [2019] FCA 295 (Navoto) in which his Honour observed (at [46]) that, in the context of decisions under s 501CA(4) of the Act, it is not necessary for the decision-maker to specifically consider each matter raised by the applicant in his or her representations; instead, the decision-maker must consider the representations as a whole. The question for a court on judicial review is whether the decision-maker has failed to consider a matter of sufficient importance that the failure to consider it indicates that the decision-maker has failed to reach the required state of satisfaction in s 501CA(4), or has failed to consider the representations as a whole: Navoto at [47]. The Minister submitted that the Tribunal’s decision record shows that it had regard to the applicant’s representations about being led into her offending by association with dominating partners. The Tribunal was prepared to accept that the applicant had been led into her offending by her association with dominating partners but was concerned that, because the applicant had been led into her offending in the past, and because a psychologist had stated that the applicant was “naïve, gullible and easily led”, she may be led into offending conduct again in the future. The Minister also relied on the Tribunal’s findings at [73] that the applicant had claimed that her ex-husband had coerced her during the process of her son obtaining permanent residency and that the applicant had expressed concern that, if she were to be returned to Thailand, her ex-husband would coerce her in future.

69    In respect of ground 3, the Minister contended that extreme illogicality must be shown and that a finding cannot be said to be illogical, irrational or unreasonable if reasonable minds might differ: SZMDS at [130]-[131]. The Minister argued that it was not irrational or illogical for the Tribunal to find that the vulnerability was still present, that vulnerability being the circumstance that the applicant was “naïve, gullible and easily led”. That circumstance had been observed by a psychologist, and had been relied on by the sentencing judge, and it was part of the applicant’s own case that she had been led into her past offending by association with dominating partners. While there was evidence that the applicant had seen a psychologist to deal with mental health issues, it was open to the Tribunal to find that there was no evidence that the applicant had addressed her tendency to be led by others.

Disposition

70    The relevant legal principles were not in dispute between the parties. A failure to put the applicant on notice of an adverse issue in the review that is not obviously open or apparent from the material and is relevant to the ultimate conclusion may be a breach of the requirements of procedural fairness: SZBEL at [35]-[43]. Such a failure may arise where the Tribunal’s findings and reasoning differ from those of the original decision-maker. A failure to address a substantial, clearly articulated argument relying upon established facts may also be a breach of procedural fairness and may constitute a constructive failure to conduct a review required by the statute and to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24], [25] and [32]; DRP17 at [47]; Maioha at [31]-[49]. The decision-maker is not required to consider each matter raised by the applicant in his or her representations; instead, the decision-maker must consider the representations as a whole: Navoto at [46] per Allsop CJ.

71    In assessing the applicant’s grounds of review, I have also kept in mind the following principles:

(a)    first, the Court must avoid the danger of straying into merits review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37 per Brennan J;

(b)    second, the Tribunal’s reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and

(c)    third, it is necessary to read the Tribunal’s reasons in light of the whole case as it was before the Tribunal, so that the materiality of the issue about which complaint is made can be assessed in the context in which the matter was conducted in the Tribunal: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ.

72    With those principles in mind, I have come to the conclusion that, in addressing paragraph 13.1.2 of Direction 65, the Tribunal failed to put the applicant on notice of an adverse issue, gullibility, that was not obviously open or apparent from the material and the Tribunal failed to consider the applicant’s representations as to the causes of her offending (and the consequential risk of re-offending) as a whole. In my view, the Tribunal’s failures concerned a central issue that could have affected the result and therefore constituted jurisdictional error.

73    As noted above, the Minister’s delegate found (at [25]) that the applicant’s offending was linked to the use of drugs during a period of emotional and physical vulnerability. Although not stated expressly by the delegate, the reference to emotional and physical vulnerability appears to be a reference to the violent and abusive relationships experienced by the applicant and the applicant’s work in the sex industry. Despite that finding, the delegate found that there remained a risk that the applicant will re-offend.

74    The applicant’s evidence and submissions put before the Tribunal sought to address those findings made by the Minister’s delegate. In a statutory declaration sworn on 16 October 2017, the applicant reiterated the difficult life she had led commencing in Thailand and continuing from 2007 in Australia. She stated that her ex-husband was controlling, abusive and violent and that he had forced her to work in the sex industry. The applicant said that she turned to drugs as an escape from having to deal with repeated sexual assaults during her work. The applicant gave evidence of the courses she had undertaken at the Dame Phyllis Frost Centre and the ongoing counselling that she was receiving. The applicant referred to the fact that her son is now a permanent resident in Australia. The applicant’s written submissions to the Tribunal on the risk of re-offending were as follows:

The Applicant has no history of violent or sexual offending. Rather, the applicant would appear to have been the victim of violence and sexual offending over the years. It is submitted that she does not pose an unacceptable risk to the Australian community and that she is unlikely to re-offend given that she has now abstained from illicit substances over a prolonged period, she is no longer in a violent relationship, and has been seeking professional assistance from a psychologist since 2016 to address her mental health issues.

The Applicant has undertaken education opportunities while in prison such as learning English and had completed a number of vocational training courses which would increase her prospects of lawful employment. Witnesses who have provided letters of support as part of the Applicant’s review application have also indicated that they are willing and able to provide the Applicant with accommodation, employment and support on release from detention. The Applicant’s conduct in prison and her expressed future intentions demonstrate a commitment to being a productive member of Australian society in the future.

75    In my view, the Member’s summary of the applicant’s contentions at [25]-[28] and the Member’s conclusions at [53]-[57] do not engage with the applicant’s evidence and argument on a central issue: that the applicant’s abusive domestic relationships, involvement in the sex industry and drug use were interrelated and were a composite cause of her offending.

76    At [25]-[28] under the heading “GWSC’s contentions”, the Member refers to the applicant’s submissions that she had been clean of drugs since she was arrested, that she had completed numerous courses while in prison and had undergone counselling, that she was taking drugs at the time of her offending and that she is now a reformed person. Absent from the Member’s summary is any reference to the abusive relationships and work in the sex industry as causes of her drug taking and offending.

77    At [29]-[33] under the heading “GWSC’s evidence”, the Member recites the applicant’s evidence about the abusive and violent relationships she had endured (at [30]) and the trauma and sexual assaults associated with work in the sex industry (at [32]). However, the Member made no finding of fact about those matters. Similarly, the Member recited the applicant’s evidence that those matters were the cause of her drug taking (at [32]), but makes no finding of fact about that evidence. The applicant’s central submission about re-offending was that those factors, which had led to her offending, were now absent.

78    The Member’s finding that the applicant had been gullible in her past conduct (at [53]) and his reasoning that, because of her gullibility (and criminal record), there is a moderate risk of re-offending (at [57]), are difficult to understand. The ordinary meaning of the word “gullible” is easily deceived or cheated (Macquarie Dictionary). However, there is nothing in the evidence recited by the Member and nothing in the submissions of the parties that suggests that the applicant’s offending was caused by any deception or because she was easily deceived.

79    The Member’s finding that the applicant was gullible in her past conduct was based on an observation made by a psychologist, Ms Cidoni, in a report submitted to Hampel J in connection with the applicant’s sentencing in the County Court proceeding. As noted earlier, Hampel J referred in her sentencing remarks to Ms Cidoni’s observation that the applicant presented as “naïve, gullible and easily led” (at [63]). Ms Cidoni’s report was not in evidence before the Tribunal. Therefore, the Member could not have read the report. Instead, the Member’s finding of “gullibility” was based solely on the reference to Ms Cidoni’s report in Hampel J’s sentencing remarks. It does not appear from the sentencing remarks that her Honour identified the applicant’s “gullibility” as a cause of the applicant’s offending. With regard to culpability, Hampel J concluded that the applicant’s culpability was at the lower end of the scale because she was a first-time offender and a vulnerable and isolated woman (at [68]). The finding that the applicant was a vulnerable and isolated woman appears to relate to a number of findings made by Hampel J including that:

(a)    the applicant arrived in Australia on a student visa in 2007 but had spent most of her time since her arrival not in study but working as a sex worker (at [58]);

(b)    the applicant married after her arrival in Australia but the relationship was unhappy and abusive and the applicant was forced to remain in sex work not only to send money home to her family in Thailand but also to assuage the demands of her then husband who was threatening to imperil her resident status (at [61]);

(c)    the applicant subsequently formed a relationship with HN who was initially a customer at the brothel where the applicant was working and they formed a relationship which was marred and marked by the mutual use of methamphetamine, with the applicant being subjected to violence and paranoid and jealous behaviour (at [62]);

(d)    the applicant’s use of the drug ice escalated when she met Mr HN, the relationship was tumultuous and the applicant’s judgment was seriously impaired when she began offending (at [63]); and

(e)    on the limited testing that was able to be done by the psychologist, Ms Cidoni, the applicant showed evidence of emotional disturbance with chronic depression and anxiety (at [64]).

80    Judge Hampel concluded that the applicant’s prospects for rehabilitation should be regarded as good (at [69]). It is not possible to discern from Hampel J’s sentencing remarks what was meant by Ms Cidoni when she stated in her report that the applicant presented as “naïve, gullible and easily led”. It is certainly not possible to conclude that Ms Cidoni considered that those characteristics were a cause of the applicant’s offending and in my view Hampel J did not find that those characteristics were a cause of the applicant’s offending.

81    I do not accept the Minister’s argument that the applicant’s grounds of review are based on a misunderstanding of the Member’s findings and reasoning. The Minister argued that the Member’s findings and reasoning in the second and third sentences of [53] should be read as referring to a single issue. The relevant findings are:

{Second sentence}While the Tribunal considers that [the applicant’s] expressions of apology about her conduct were genuinely made, it is clear that she has been, as the assessing psychologist concluded, gullible in her past conduct. {Third sentence}It may be the case that she had been led into her offending by association with dominating partners, but there is no evidence before the Tribunal that that vulnerability is not still present.

82    The Minister argued that the Member’s finding was that, because the applicant was “naïve, gullible and easily led”, and had in the past been led by others into criminal conduct, there was a possibility that this could occur again in future. The statement that “there is no evidence before the Tribunal that that vulnerability is not still present” is a finding that there was no evidence that the applicant was no longer a person who is easily led.

83    There are a number of difficulties with the Minister’s submission. First, it seeks to connect the second and third sentences of [53] by incorporating the whole of Ms Cidoni’s observation into the second sentence “naïve, gullible and easily led”, so that there is a common theme of “being led” in the second and third sentence. However, the word “gullible” and the phrase “easily led” have different meanings and the Member did not include both of them in the second sentence. Second, the findings in the second and third sentences are of a different nature. The finding in the second sentence is a positive finding that the applicant has been gullible in her past conduct. The finding in the third sentence is not a positive finding but rather a conditional one: the sentence begins with the phrase “It may be the case”. Third, the finding in the third sentence is self-contained; grammatically, the “vulnerability” must refer to being led into offending by association with dominating partners. Each of those factors suggest that the two sentences are discrete findings. Significantly, it is the finding of gullibility that the Member returns to at [57].

84    In my view, the Tribunal’s finding that the applicant was gullible in her past conduct and that, because of her gullibility, there is a moderate risk of re-offending, amounted to a denial of procedural fairness to the applicant. The Tribunal failed to put the applicant on notice of an adverse issue, namely gullibility, that was not obviously open or apparent from the material. While gullibility was referred to in Hampel J’s sentencing remarks, the reference was passing, unexplained and not obviously related to the cause of her offending or the risk of re-offending. The issue of gullibility formed no part of the decision of the Minister’s delegate. The applicant could not reasonably have anticipated that Ms Cidoni’s observation would become a significant finding in the Tribunal review and, understandably, the applicant never addressed that finding.

85    More broadly, I accept the applicant’s submission that the Tribunal failed to consider the applicant’s representations as to the causes of her offending (and the consequential risk of re-offending) as a whole. The applicant’s evidence and submissions were to the effect that her offending resulted from her work in the sex industry including sexual assault, abusive domestic relationships and consequential drug taking. The applicant’s vulnerability because of those factors was a finding made by Hampel J in her sentencing remarks and by the Minister’s delegate. Despite that, the Member made no findings about central aspects of the applicant’s evidence and submissions:

(a)    It can be accepted that the Member found that the applicant has “sloughed off her drug habit whilst in prison” (at [56]). However, the Member made no finding of fact about the applicant’s involvement in the sex industry or the sexual assault she endured and did not address those matters as causative factors in her offending.

(b)    With respect to the applicant’s claims of abusive relationships, the Member stated that “it may be the case that she had been led into her offending by association with dominating partners” (at [53], emphasis added). The Member made no finding of fact about that matter (whether to accept or reject it) and undertook no consideration of whether any of the applicant’s abusive relationships may have contributed to the her involvement in the sex industry and drug taking, and in turn contributed to her offending.

(c)    In respect of the applicant’s rehabilitation, the Member stated that the “risk of re-offending may be reduced because of the counselling [the applicant] had in prison and the impressive number of courses she has successfully completed” (at [57], emphasis added). Again, while the Member appeared to accept the evidence of counselling and courses undertaken by the applicant, the Member made no finding on whether the risk of re-offending had been reduced by the counselling and courses (the Member merely found that the risk may be reduced). The Member also did not consider any relationship between those matters and the reasons behind the applicant having worked in the sex industry and her involvement in abusive relationships.

(d)    The Member stated that the risk of re-offending “may be further reduced if [the applicant] had more stable accommodation and employment” (at [57], emphasis added). Again, the Member made no finding about the likelihood of the applicant finding stable accommodation and employment (outside the sex industry), nor any finding whether the risk of re-offending would be reduced in those events.

86    It is, of course, a matter for the Tribunal to make relevant findings of fact and to apply the law (and the mandatory considerations in Direction 65) to the facts as found. The error made by the Tribunal was its failure to undertake that task in respect of a central aspect of the applicant’s case. That failure can be characterised as a breach of procedural fairness and also a constructive failure to conduct the review required by the statute and to exercise jurisdiction. Given my findings on grounds 1 and 2, it is unnecessary to address ground 3, illogicality, as a separate ground of review. As noted already, the Tribunal’s finding and reasoning about the applicant’s gullibility is difficult to understand in circumstances where there was no evidence or submissions from the applicant or the Minister that the applicant’s gullibility was a cause of her offending and the relevant circumstances do not suggest that gullibility was in fact a cause. However, it is not necessary to determine whether the Tribunal’s reasoning is illogical or irrational in the legal sense.

87    It remains to be considered whether the error of which the applicant complains is sufficiently material such that it constitutes jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 6-9 per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45] per Bell, Gageler and Keane JJ. In my view the error is material for the following reasons. First, the causes of the applicant’s offending was an important issue in the context of the Tribunal’s review. It was a material issue in the assessment of the risk of the applicant re-offending, which was material to the risk to the Australian community of further offending, a primary consideration under paragraph 13.1.2 of Direction 65. Second, whilst it can be accepted that the Tribunal’s finding that the applicant’s risk of re-offending was moderate was based on a range of factors, the evidence and submissions advanced by the applicant concerning the causes of her offending, particularly the abusive relationships and consequences of her working in the sex industry, had the potential to be as material, if not more material, than the other factors taken into account by the Tribunal. For that reason, the Tribunal’s failure to engage properly with that evidence and those submissions could have deprived the applicant of a different outcome. Third, the Tribunal’s finding based on the applicant’s “gullibility” was a material factor which it took into account. The applicant was deprived of an opportunity to respond to that issue.

Appeal ground 4

88    Appeal ground 4 concerns the Tribunal’s reasoning with respect to the third primary consideration in paragraph 13.3 of Direction 65: the expectations of the Australian community. In that regard, the Tribunal referred to the statement in Direction 65 that the Australian community expects non-citizens to obey Australian laws whilst in this country. The Tribunal also referred to the remarks of Mortimer J in YNQY, where her Honour said:

[76] In substance this consideration is adverse to any applicant.

[77] It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64] – [66]).

89    The Tribunal stated its agreement with Mortimer J’s conclusion. However, the Tribunal observed that the weight of the consideration in paragraph 13.3 in Direction 65 may nevertheless undulate significantly according to the context and circumstances in which a non-citizen’s offending has occurred. The Tribunal’s conclusion on this consideration was expressed in the following terms (at [62]):

The Tribunal concludes that members of the Australian community, properly informed, would adopt an unfavourable view of what is on the evidence a well-planned drug growing enterprise, given the pernicious impact the illegal drug trade has on society. Adding to that [the applicant’s] separate convictions for possessing weapons and for trafficking in ICE, this consideration weighs strongly towards not revoking the mandatory cancellation of the visa.

90    The applicant contended that the Tribunal denied the applicant procedural fairness and/or asked itself the wrong question by failing to consider the applicant's clearly articulated arguments in relation to the expectations of the Australian community. In that respect, the applicant relied on the principles stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (at [46]-[47]) (WAEE) to the effect that, if the submission was insignificant, it may be inferred that the Tribunal considered the matter implicitly. Alternatively, if the issue was significant or potentially critical in the context of the review and the Tribunal's reasons, then the failure to refer to it may suggest it was not considered.

91    The applicant’s submission was made in the following terms:

Notwithstanding the seriousness of the Applicant’s criminal offending, it is highly unlikely that the Australian community would expect a person in the Applicant’s circumstances to be involuntarily removed from Australia, particularly having regard to the fact that the Applicant’s criminal offending happened against a background of serious family violence, drug abuse, and mental health issues. The Applicant is no longer in an abusive relationship and has abstained from drugs since undergoing her prison sentence. Further the Applicant has ongoing measures in place with psychologist Dr Julie Kruss, such as regular counselling, to address her mental health issues.

92    The applicant argued that the Tribunal in its analysis focused only on the factors relevant to the nature and seriousness of the offending and made no reference to the applicant's submissions that the expectations of the Australian community would be affected by the specific circumstances of the applicant, particularly the domestic violence suffered by the applicant. The applicant argued that it can be inferred that the Tribunal did not consider the applicant's submission because the submission went to a significant matter and the Tribunal made no reference to the applicant's representations regarding domestic violence in its findings.

93    The Minister contended that the Tribunal observed that the weight given to the expectations of the Australian community may vary significantly “according to the context and circumstances in which a non-citizen’s offending has occurred”. Although in this context the Tribunal did not expressly refer to the applicant’s history of drug abuse, domestic violence and mental health issues, the Minister submitted that this is because those matters were subsumed in a finding of greater generality, relying on WAEE at [47]. The finding of greater generality was that members of the Australian community, properly informed, would adopt an unfavourable view of the applicant’s offending, on the whole. The Minister submitted that, where the Tribunal was aware of the circumstances of the applicant’s offending and was expressly addressing “the context and circumstances in which a non-citizen’s offending has occurred”, the proper inference to be drawn is that the words “properly informed” referred to all of the relevant circumstances, including those raised by the applicant.

94    In my view, the submissions of the applicant should be accepted for similar reasons to grounds 1 and 2. I accept the Minister’s submission that the Member’s use of the phrase “properly informed” can be taken to be a shorthand reference to the findings made elsewhere by the Tribunal about the “context and circumstances” in which the applicant’s offending occurred. However, for the reasons given in respect of grounds 1 and 2, in my view the Minister failed to consider and make findings about a central aspect of the applicant’s evidence and submissions about the causes of her offending, which constitute part of the “context and circumstances” of her offending. Again, that failure can be characterised as a breach of procedural fairness and also a constructive failure to conduct the review required by the statute and to exercise jurisdiction. In my view, the Tribunal’s error was jurisdictional because it related to one of the three primary considerations under Direction 65. The result could have been different if the Tribunal had considered that aspect of the applicant’s evidence and submissions.

Relief

95    In conclusion, I uphold grounds 1, 2 and 4 of the applicant’s further amended originating application. I will issue a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus requiring the Tribunal to re-determine the matter in accordance with law. I will also order costs in favour of the applicant.

Associate:

Dated:    12 July 2019