FEDERAL COURT OF AUSTRALIA

Doan v Minister for Home Affairs [2019] FCA 1172

ORDERS

THE COURT ORDERS THAT:

1.    The decision dated 18 February 2019 of the Administrative Appeals Tribunal is set aside.

2.    The applicant’s application for review is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3.    The first respondent pay the applicant’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    This judicial review proceeding raises important questions as to the scope of judicial review of fact finding by the Administrative Appeals Tribunal (AAT). The proceeding relates to a decision of the AAT which is reported as Doan and Minister for Home Affairs [2019] AATA 169.

Summary of background facts

2    The applicant is a 35 year old citizen of Vietnam who first arrived in Australia on 31 December 2013 on a student visa. It is undisputed that, at that time, the applicant intended to enrol in a Master’s degree in Australia but, at the suggestion of the education institution subsequently proposed to enrol in a Bachelor of Business Management. However, because he could not successfully complete the pre-requisite English-language courses he never began that degree. As will shortly emerge, there is an issue whether the applicant completed a Master’s degree in Vietnam before he came to Australia.

3    In February 2015, the applicant married an Australian citizen who already had a daughter from a previous relationship. The daughter is now six years old. The couple also have a daughter together who is now aged three.

4    On 21 January 2016, the applicant pleaded guilty and was convicted of supply of a prohibited drug (cannabis), knowingly taking part in cultivation of a commercial quantity of a prohibited drug (cannabis), and having goods in personal custody suspected of being stolen (which was taken into account). For the first two offences, the applicant received two concurrent terms of imprisonment of 24 months, with a non-parole period of 16 months. The terms of imprisonment commenced on 3 July 2015, when the applicant was first held on remand.

5    In July 2016 (i.e. after his convictions), the applicant was granted a bridging visa E and then, on 8 December 2016, he was granted a class UK, Subclass 820 Partner visa (partner visa) based on his marriage. He was told in a Departmental letter dated 14 July 2016 that he may not satisfy s 501 of the Migration Act 1958 (Cth) (Act) for character reasons but that his application for a bridging visa would not be refused for that reason on that occasion.

6    The applicant was released from prison on 2 March 2016 (in circumstances where there appears to have been a misunderstanding about the length of the non-parole period), and was taken into immigration detention from then until July 2016. His release from immigration detention in July 2016 coincided with the grant to him of a bridging visa. The applicant returned to prison on 15 November 2017 because it was found that he had breached the reporting conditions of his parole. Shortly after the Parole Authority rescinded the revocation of the applicant’s parole on 9 January 2018, the applicant was taken again into immigration detention.

7    It should be noted that shortly before the applicant was released from immigration detention in July 2016, he claimed to have been raped by two men at Villawood Detention Centre. This claim was not disputed by the Minister.

8    On 30 November 2018, the applicant’s partner visa was automatically cancelled pursuant to s 501(3A) of the Act. He sought revocation of that decision and made supporting representations.

9    By a decision dated 26 November 2017, the Minister’s delegate decided not to revoke the visa cancellation decision pursuant to s 501CA(4).

AAT proceedings

10    On 4 December 2018, the applicant applied to the AAT for a review of the delegate’s decision.

11    By a decision dated 18 February 2019, the AAT affirmed the non-revocation decision.

12    Before summarising the AAT’s reasons, it is desirable to set out ss 501(3A) and 501CA of the Act:

501    Refusal or cancellation of visa on character grounds

...

(3A)    The Minister 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); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); 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.

…

501CA Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

  (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.

13    In conducting its review, the AAT was bound to comply with Direction 65, which is titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.

14    In circumstances where the judicial review application focuses upon three areas of the AAT’s reasons, it is sufficient to summarise the relevant parts of the reasons (which are detailed and extensive) which relate to those three areas. The first part concerns the AAT’s assessment of the evidence of two psychologists, Mr Green and Mr Watson-Munro. The second part relates to the AAT’s treatment of prior decisions of the Minister in relation to the applicant with particular reference to the grant of the bridging visa and partner visa. The third part relates to the AAT’s assessment of the prospects of the applicant being granted a permanent partner visa if the visa cancellation decision was revoked. It is convenient to deal with the first and third parts together.

(a) The two psychological reports, the AAT’s findings of the risk of the applicant re-offending and the prospects of the applicant being granted a permanent partner visa

15    The AAT had before it reports by two psychologists. Mr Green’s report was dated 17 January 2016 (Green Report). It had been put into evidence in the District Court for the purposes of sentencing. It was put into evidence in the AAT by the Minister without objection. Significantly, Mr Green was not cross-examined. Mr Watson-Munro’s report is dated 30 January 2019 (Watson-Munro Report). It was put into evidence by the applicant. The Watson-Munro Report was obtained by the applicant for the specific purpose of the AAT review. Mr Watson-Munro was cross-examined.

16    Mr Watson-Munro did not review a copy of the Green Report but he had access to the sentencing judge’s remarks. They included a detailed summary of Mr Green’s assessment, including his opinion in 2016 that there was “a low to moderate risk of reoffending”, which partly informed the sentencing judge’s conclusion that the prospects of the applicant’s rehabilitation were “good” [AB 100-101].

17    In early 2019, Mr Watson-Munro assessed the risk of the applicant re-offending as “low” having regard to matters set out in his report. As the AAT noted at T[61], Mr Watson-Munro identified additional reasons during the course of the AAT hearing as to why he thought the risk of re-offending was low. They included the applicant’s general history, the support from his family, the strong bond with his daughter and stepdaughter, the desire to assist the family, and the experience of incarceration.

18    It is desirable to set out T[62] as it is relevant to the AAT’s response to the different assessments of the two psychologists:

62.    Mr Watson-Munro indicated that that while he had not seen Mr Green’s pre-sentencing report, had he assessed the applicant prior to sentencing, he would have reached the same conclusion as Mr Green, that the applicant presented a “low to moderate” risk of reoffending. He said that, since the time when Mr Green’s report was made, the bonds between the applicant and his wife and children had strengthened, that he had matured and gained some insight into the consequences of future offending. Mr Watson-Munro concluded that, because of the applicant’s progression since Mr Green’s report, he now maintained that in his view the applicant presented a “low” risk of reoffending.

19    Mr Watson-Munro was cross-examined at some length by the Minister’s representative. He was also asked many questions by the AAT. The AAT raised with Mr Watson-Munro whether it would have any bearing on his assessment that there was a low risk of re-offending if, in fact, the applicant did not have a Master’s degree. This question arose in the context of a statement in the Watson-Munro Report that the applicant had “stated that he completed a Master’s Degree in Management [in Vietnam] and following this, applied to come to Australia under a Student Visa to further his studies in the field”. It is common ground that Mr Watson-Munro was wrong in stating that he had been told by the applicant that he had completed a Master’s degree in Vietnam. However, it appears there was a misunderstanding by the AAT that the Watson-Munro Report had recorded a representation by the applicant that he had completed a Master’s degree in Australia. This was stated to be one example of why the AAT considered the Green Report to be more consistent with the applicant’s evidence, as accurately reporting that the applicant had been unable to enrol and complete a Master’s degree in Australia due to his failure to satisfy the pre-requisite English language requirements. When cross-examined on these matters by the AAT, Mr Watson-Munro responded to the AAT’s question by saying that if the applicant had been less than frank with him that would be “a relevant consideration”, but that it would not cause him to say that, because of that alone, there is a high likelihood that he would re-offend T[77]. In its reasons for decision, the AAT characterised this exchange as involving an acknowledgment that “if the applicant had provided [Mr Watson-Munro] with false information, this may affect his assessment of the Applicant’s risk of reoffending” (at T[101]).

20    It is desirable to set out T[100] to [105] and T[111], [113] and [114] of the AAT’s reasons because they record the core of the AAT’s analysis and findings concerning its assessment of the psychologists’ evidence.

100.    The Tribunal considers that there are certain elements in the report and evidence of Mr Watson-Munro which may lead the Tribunal to prefer the report of Mr Green. For example, Mr Green spent almost 3 times as much time with the Applicant as did Mr Watson-Munro. Mr Green’s report is far more detailed than that of Mr Watson-Munro especially in terms of the factual circumstances discussed in the reports. Further, Mr Green’s report tends to better reflect the evidence that the Applicant has provided to the Tribunal and the evidence that is before the Tribunal. For example, Mr Watson-Munro indicated that the Applicant completed a Masters degree and that this indicated intelligence, accomplishment, focus and motivation and suggested that these traits may be relevant to an assessment of the Applicant’s risk of reoffending. However, it was clear from the evidence that, while the Applicant had originally come to Australia to eventually complete a Masters degree, he could not pass the pre-requisite English-language courses and therefore never began the Masters degree course. This was accurately reflected in Mr Green’s report.

101.    Mr Watson-Munro acknowledged that, if the Applicant had provided him with false information, this may affect his assessment of the Applicant’s risk of reoffending. Presumably the same could be said if the Applicant had been truthful but Mr Watson-Munro had misunderstood the Applicant’s claims.

102.    These concerns with Mr Watson-Munro’s report raise the question as to how confident the Tribunal can be in relying on his ultimate assessment that the Applicant presents a low risk of reoffending, especially where his assessment differs from the final assessment of Mr Green which was a more detailed and factually accurate report indicating that the risk of reoffending to be “low to moderate.”

103    However, the Tribunal has also placed weight on Mr Watson-Munro’s assessment that the passing of time since Mr Green’s report, the development of stronger ties between the Applicant and his immediate family members, that the Applicant has matured and developed insight into his offending and the effects of detention have meant that Mr Green’s assessment, made before sentencing, may now be unreliable.

104.    A further complicating matter in this case is that the Applicant gave evidence that he was sexually assaulted in June 2016 while he was detained in immigration detention. The Applicant’s wife gave evidence (after Mr Watson-Munro had been excused) that, after the Applicant was released from immigration detention in mid-2016, the assaults had a profound impact on the Applicant psychologically. She described the Applicant as being “mentally ill” as a result of the attack. She said that he did not seek employment during the period of his release between mid-2016 and November 2017 because he was in no state to work or be around others. The Applicant’s wife said that the Applicant was highly depressed. She said that after his release from immigration detention, he was no longer himself; that he would talk to himself and made comments indicating that he wanted to commit suicide. She said that he was institutionalised on two occasions in relation to his psychological state. The Applicant’s wife said that the Applicant would become paranoid, believing that she was trying to drug him. The Applicant’s wife indicated that the Applicant could not control his temper or look after himself. The Tribunal accepts the Applicant’s wife’s evidence about the effect of the alleged attack on the Applicant.

105.    While it is apparent that the Applicant’s most recent statement indicates that he was raped while in immigration detention in June 2016, and that this statement was before Mr Watson-Munro, the statement does not contain any detailed evidence about the effect of the alleged sexual assault on the Applicant. As such, it does not appear that Mr Watson-Munro’s report deals with the psychological difficulties that the Applicant faced as a result of the alleged attack upon him. Importantly, the report does not deal with what, if any, effect those psychological difficulties had on the assessment of his risk of reoffending.

…

111.    While the Tribunal has concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both Mr Munro-Watson and Mr Green for the reasons mentioned above, and some concerns about the sustainability of the employment offered by Mr Nguyen in so far as it relates to any risk of recidivism, the Tribunal finds that the risk of the Applicant reoffending falls within the ranges provided by Mr Green and Mr Watson-Munro. That is, the Tribunal finds that there is a “low” to “low to moderate” risk that the Applicant will reoffend. In reaching this conclusion the Tribunal has also considered the views of the sentencing judge that the Applicant has good prospects of rehabilitation.

113.    The Tribunal has found that the Applicant’s offending conduct was serious and the nature of the conduct involved the supply of a prohibited drug and cultivation of a commercial quantity of cannabis in the manner described by the sentencing judge. The Tribunal has found that if the Applicant were to reengage in similar criminal conduct that it is likely that harm would come to members of the Australian community through the use of cannabis. The Tribunal has found that there is a “low” to “low to moderate” likelihood of the Applicant engaging in further criminal or other serious conduct.

114.    After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. While the Tribunal considers that there is a “low” to “low to moderate” likelihood that the Applicant will reoffend, the Tribunal does not consider that this risk is insignificant. If the Applicant repeats his serious offending it will likely result in harm to members of the Australian community through the use of cannabis. In this case, considering the seriousness of the conduct, the potential harm to the community were the Applicant to reoffend, and the ‘low’ to ‘low to moderate’ risk of reoffending, the Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.

(Emphasis added).

21    In brief, the effect of the AAT’s analysis is that it had concerns about both psychologists’ assessments of the risk of re-offending and determined that it assessed the risk as falling within the ranges provided by those psychologists. Thus, despite the AAT’s stated reservations about both expert’s evidence, it adopted a range which reflected the respective assessments of risk by both psychologists. This was described by the applicant in the current proceeding in this Court as having “an each way bet” and was said to be arbitrary. At T[114], the AAT stated that it considered that there is a “‘low’ to ‘low to moderate’ likelihood” that the applicant will re-offend and that it did not consider that this risk “is insignificant” (the AAT used similar language at T[249]).

22    It should also be noted that at T[106] to [110] the AAT discussed and made findings on the issue of whether stable employment would reduce the chances of the applicant re-offending, which was the view expressed by Mr Watson-Munro. The AAT concluded at T[110] that it accepted that an offer of employment by a Mr Nguyen to the applicant was genuine, however, the AAT expressed some concerns about the uncertainty of the conditions of the potential employment and its sustainability.

23    Finally, as part of its assessment of the best interests of the children, the AAT noted at T[136] that the partner visa which was mandatorily cancelled was a temporary visa. It saw this as significant in relation to the best interests of the children as there was no guarantee that the applicant would have been allowed to remain permanently in Australia even if his visa had not been mandatorily cancelled. This was because (emphasis added):

Even if the Tribunal were to revoke the cancellation of the Applicant’s visa, it would appear that there is a good chance that the Applicant would not be granted a Partner (BS 801) permanent visa because he fails to pass the character test.

(b) Relevance of Department’s decisions to grant the applicant two visas notwithstanding his convictions

24    In relation to the significance of the Department’s previous decisions to grant the applicant a bridging visa and the partner visa despite his convictions, the AAT stated at T[112] that it placed no weight on those decisions because it did not consider either of them to “evidence that the Applicant presents no risk to the community”. The AAT added that, in any event, it was for it to determine the risk that the applicant would reoffend.

Judicial review proceeding in this Court

25    By an amended application for review, the applicant raised four grounds of judicial review. Ground 1 claimed that the AAT failed to comply with its obligations under ss 2A and 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to provide a mechanism that is fair and just and to ensure that the applicant was given a reasonable opportunity to present his case. This ground was particularised as relating to the AAT’s reliance upon the Green Report without providing the applicant with an opportunity to cross-examine the author.

26    Ground 2 attacked the AAT’s finding at T[111] that there is a “’low’ to ‘low-moderate’ risk” that the applicant would reoffend, which was described by the applicant as being “arbitrary, capricious and without ‘common sense’”.

27    Ground 3 was directed to the AAT’s finding at T[112]. The applicant complained that the AAT fell into jurisdictional error in not giving weight to the fact that the two earlier decisions to grant him visas were probative of the Minister having previously not considered him to pose an unacceptable risk to the Australian community.

28    The fourth ground challenged the AAT’s reasoning at T[136], where the AAT said that, even if it revoked the mandatory visa cancellation decision, “it would appear that there is a good chance that the Applicant would not be granted a Partner (BS 801) permanent visa because he fails to pass the character test” (emphasis added). The applicant contended that this “critical finding” was not supported by the evidence and was otherwise unreasonable.

Applicant’s submissions summarised

29    As to ground 1 and the claim that the AAT adopted an unfair process, the applicant emphasised that the issue of the risk of him re-offending was a critical issue and that the competing opinions of the psychologists was central. He acknowledged that no objection was taken to the Green Report being put into evidence but he emphasised that when it became apparent during the hearing that the AAT might prefer the Green Report, a submission had been made that Mr Green ought to have been made available for cross-examination. The applicant relied upon the Full Court’s decision in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555, particularly at [120] per Flick and Perry JJ:

120.    … The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.

30    In these circumstances, the applicant submitted that the AAT’s failure to require that Mr Green be cross-examined just as had happened with Mr Watson-Munro, constituted a failure to comply with s 39(1) of the AAT Act.

31    The applicant also contended that the AAT’s preference for the Green Report offended s 2A of the AAT Act, which he said required the AAT to provide a mechanism that is fair and just. In his outline of written submissions, the applicant submitted that the AAT’s finding at T[111] that there is a “low to “low to moderate” risk of re-offending was simply perverse and amounted to an “each way bet”. The applicant’s criticisms of this aspect of the AAT’s reasoning and findings were articulated in new amended ground 2, which was not opposed by the Minister.

32    Ground 2, as amended, relates to the AAT’s fact finding and whether it constituted jurisdictional error. The applicant cited the Full Court’s recent decision in Vo v Minister for Home Affairs [2019] FCAFC 108 as stating relevant principles for judicial review of fact finding for unreasonableness. In particular, he referred to items 3, 8, 9 and 11 at [43] of Vo where the Full Court identified various matters as being relevant to a complaint of jurisdictional error based on legal unreasonableness.

33    The applicant repeated that the AAT’s finding on risk of reoffending was “critical” to the outcome of the decision and that the AAT’s error was sufficiently grave as to amount to jurisdictional error. In particular, the applicant highlighted the fact that the AAT’s risk assessment did not reflect the opinion of either of the psychologists, but instead the AAT combined the two experts’ individual risk assessments to arrive at a third risk assessment which was entirely different.

34    As to Ground 3 and the relevance of the two previous Departmental decisions to grant the applicant visas, the applicant contended that these matters were clearly relevant to the AAT’s assessment of the risk that he might reoffend, yet the AAT gave those matters no weight.

35    As to Ground 4, the applicant claimed that the AAT was merely speculating when it found that there was a “good chance” that he would not be granted a permanent partner visa because he failed the character test, the applicant relied on Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 and, in particular, what Charlesworth J (with whom Flick and Perry JJ agreed) said at [36]:

36.    It may be observed from the outset that the task of the Minister necessarily involved a degree of postulation as to what might occur in the future should Mr Muggeridge’s visa not be cancelled and should he remain present in the Australian community. The Minister was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their occurrence.” The adoption of a reasoning process that involved postulation or supposition cannot, in and of itself, therefore constitute jurisdictional error. It is nonetheless necessary that the hypotheses underlying the decision bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.

36    The applicant contended that there was no rational connection between the AAT’s hypothesis and any of the evidentiary material and the AAT’s finding was mere speculation and conjecture.

Minister’s submissions summarised

37    As to ground 1 and the alleged breaches of ss 2A and 39 of the AAT Act, the Minister submitted that the former provision is merely aspirational or exhortatory in nature and does not provide a source of enforceable rights and obligations, citing Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80] per Griffiths J and Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [79] per Wigney J.

38    As to the applicant’s reliance on s 39, while the Minister accepted that the AAT is obliged to give a party a reasonable opportunity to present his or her case, it was essential to have regard to all the relevant circumstances. Here, the AAT was not obliged to require Mr Green to be called for cross-examination and it was sufficient for the purposes of s 39 for the AAT to conduct a proper assessment and evaluation of all the circumstances in which the evidence was given, including noting that while Mr Watson-Munro’s evidence had been tested in cross-examination, Mr Green’s had not, a matter to which the AAT made express reference at T[96].

39    New amended ground 2 relates to the applicant’s claim that the AAT’s reasons in analysing the psychologists’ evidence and assessing risk was arbitrary, capricious and without “common sense”. In oral address, the Minister’s counsel accepted that “irrationality or illogicality” are a subset of the concept of legal unreasonableness, a matter which was developed in the post-hearing supplementary submissions by the Minister. The Minister defended the AAT’s reasons and findings. He submitted that the AAT’s comparison between the two reports was based on a range of factors, as identified by the AAT at T[100] to [105].

40    The Minister submitted that there was no perversity in the AAT’s conclusion “that the risk was in a range between low and low to moderate”. This conclusion was defended as being neither arbitrary nor illogical. Moreover, it was “entirely coherent to suggest that whether the risk is low or low to moderate that a risk within that range is not significant” (referring to T[114]). The Minister submitted that the finding at T[111] formed part of the AAT’s ultimate conclusion at [114] that the risk of re-offending was “not insignificant” and that this formed part of the legitimate balancing exercise required by cll 13.1.1 and 13.1.2 of Direction 65.

41    The Minister accepted that fact-finding is amenable to review where it is illogical or irrational but emphasised that the threshold for showing illogicality is very high, citing ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47].

42    The Minister also accepted that fact-finding may attract judicial review for legal unreasonableness where the fact-finding occurs in the course of the exercise of a statutory discretionary power, citing Li v Minister for Immigration and Citizenship [2013] HCA 18; 249 CLR 332 at [28]-[29], [63] and [88], as well as Full Court authorities which included Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1. The Minister emphasised the importance of a judicial review court not exceeding its role by undertaking a review of the merits and substituting its own view for that of the decision-maker. He submitted that the Court needed to respect the area of “decisional freedom” accorded to an administrative decision-maker (citing Li at [30] per French CJ and Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [37]).

43    Presumably relying upon the interpretation of s 501CA(4) in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [74] per Gageler and Gordon JJ (with whom Nettle J agreed), the Minister did not dispute that there was a discretion under s 501CA(4) (cf Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548 at [30]-[32] per Collier J (with whom Logan and Murphy JJ agreed)). After referring to the breadth of that discretion, the Minister urged the Court not to accept the applicant’s submission which, so it was submitted, suggested that the AAT was required to make “a binary choice” between a finding of “low” risk or “low to moderate” risk. The Minister submitted that there was a range of possible answers, including a finding that the risk itself operated on a scale between competing alternatives. The Minister added that, wherever the risk was placed along a range, the AAT found at T[114] that it rose to a level where it was “significant in the statutory calculus based on the matters in Direction 65”. The Minister said that such a conclusion was reasonably open to the AAT and that the Court should not insert itself into the zone of decisional freedom.

44    As to ground 3, and the alleged failure by the AAT to give any weight to the fact that the applicant had been granted two visas after the Department was aware of his convictions, the Minister submitted that both those decisions were discretionary and the exact basis for each of them was unknown. He added that they may well have been based on different assessments by other decision-makers based on different evidence and that it was a matter for the AAT to come to its own view.

45    Finally, as to ground 4 and the alleged absence of any evidence to support the AAT’s statement that there was a “good chance” that the applicant would never be granted a permanent partner visa because of his bad character, the Minister defended this statement on the basis that there was a reasonable probability that there may be a risk of rejection of a permanent partner visa in circumstances where the applicant did not meet the character test.

46    The Minister submitted that Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 was distinguishable because the AAT’s conclusion was based on rational and probative, albeit limited, material.

47    Finally, the Minister submitted that Muggeridge was also distinguishable because, in the case here, there is a rational connection between the AAT’s conclusion and the evidence. He submitted that, to suggest otherwise would be to confuse the amount of evidence for a conclusion with the presence of some evidence for a conclusion.

Analysis and determination

48    It is convenient to address each of the four grounds of judicial review in turn.

(a) Ground 1: alleged breaches of ss 2A and 39 of the AAT Act

49    Both parts of ground 1 should be rejected, substantially for the reasons advanced by the Minister in his submissions. Section 2A of the AAT Act is merely aspirational and does not provide a source of enforceable rights and obligations (see the cases referred to at [37] above).

50    As to the alleged breach of s 39, I accept the Minister’s submission that this provision did not oblige the AAT to require Mr Green to be called for cross-examination. Although the absence of cross-examination may be relevant to questions of procedural fairness (Twentyman at [78]), in this case it was appropriate for the AAT to proceed in the manner that it did. In circumstances where the AAT evaluation of the psychologists’ evidence, including that of Mr Green, specifically acknowledged that he had not been cross-examined, a fact to which the AAT made express reference at T[96], it cannot be said the AAT adopted an unfair process in declining to adjourn the hearing to allow Mr Green to be called for cross-examination.

51    Sullivan lends no support to this aspect of the applicant’s case. That decision does not stand for the proposition that the AAT is obliged, in circumstances such as here, to require a witness to be present for cross-examination. On the contrary, it is to be noted that Flick and Perry JJ stated at [120] of Sullivan that the absence of any cross-examination may well be a factor to be taken into account by the AAT, and thereafter in the Court on an “appeal” under s 44 of the AAT Act. I respectfully agree.

(b) Amended ground 2 and perverse or illogical reasoning and/or findings by AAT on risk of re-offending

52    As is evident from the summaries of the parties’ respective submissions above, there was substantial agreement as to the applicable principles in determining whether the AAT’s reasons and findings regarding the risk of the applicant re-offending were unreasonable in the legal sense (or perverse, irrational or illogical) within the framework of jurisdictional error. There are several fundamental points to emphasise (noting that, some of the general principles set out below are drawn from cases involving judicial review for jurisdictional error of statutory discretions other than s 501CA(4)).

53    First, the Minister accepted that the AAT’s decision under s 501CA(4) of the Act involved the exercise of a discretionary power which attracted the general principles of review for unreasonableness in the legal sense in respect of statutory discretions, as stated in Li and explained and applied in subsequent Full Court authorities.

54    Secondly, review for legal unreasonableness is “invariably fact dependent” (Singh at [42]).

55    Thirdly, where reasons are available (as is the case here) the focus in applying the legal unreasonableness ground is on those reasons with a view to determining whether there is an intelligible and rational justification for the impugned finding and/or decision (Singh at [46] and [47]).

56    Fourthly, that said, reasons should not be construed by a judicial review court with “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30]).

57    Fifthly, a determination in a judicial review proceeding whether or not there is illogical or irrational reasoning in the course of fact-finding occurs under the rubric of review for jurisdictional error, of which materiality is an essential requirement (Hossain at [25], [30] and [31]; Vo at [43] and Muggeridge at [35]).

58    Sixthly, because Direction 65 bound the AAT, it was obliged in considering the risk to the Australian community to 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 (cl 13.1.2(2)); and

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non-citizen re-offending (cl 13.1.2(2)).

59    Seventhly, the AAT’s evaluation and findings concerning the risk of re-offending had to be logical and rational and comply with the principles identified in cases such as Muggeridge.

60    Eighthly, it is generally insufficient that a complaint of unreasonableness or perversity in respect of fact-finding or decision-making is based on the weight given to particular evidence or material because the assessment of weight is entrusted to the administrative decision-maker (subject to appropriate legal constraints) and the mere fact that the Court disagrees with factual findings or reasoning does not produce jurisdictional error (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] and Vo at [43]).

61    Ninthly, any error must be so grave in its nature and in the significance of its subject matter that it results in a decision that has been reasoned in a manner which is not authorised (Hossain at [25], [30]-[31] and Vo at [43]). As Allsop CJ observed in Stretton at [12]:

12.    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

62    Tenthly, as the plurality observed in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [34] it “has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it”.

63    Finally, the following observations of the Full Court in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] are apposite:

47.    Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

64    There is also a helpful discussion of the relevant principles in Justice Robertson’s article, “The Federal Court and Administrative Law : How Does the Court Deal with Findings of Fact on Judicial Review?” in Ridge and Stellios, The Federal Court’s Contribution to Australian Law, 2018, The Federation Press, 83 at 98-101.

65    With these general principles in mind, and appreciating the need for self-restraint, I shall now explain why, despite the AAT’s otherwise careful analysis, I consider that the AAT fell into jurisdictional error in its analysis of the psychologists’ evidence and the consequential findings it made on the risk of the applicant re-offending.

66    First, there may be ongoing debate as to whether the risk of harm to the Australian community and the likelihood of a non-citizen re-offending are mandatory relevant considerations where the Minister personally makes a decision under either ss 501(2) or 501CA(4) (see, for example Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367; Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513; Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [41] and AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [55] and Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [71]), but the binding nature of Direction 65 on the AAT puts the issue beyond doubt here. As noted above, cl 13.1.2(2) obliges the AAT to have regard to 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.

67    Secondly, the AAT assessed the information and evidence before it on the risk of the applicant re-offending, including the expert evidence contained in the Green and Watson-Munro Reports.

68    Thirdly, the AAT identified various concerns which it had with the reliability of the final conclusions by both Mr Green and Mr Watson-Munro. The concerns it had with Mr Green’s Report are identified in T[103], while its concerns with Mr Watson-Munro’s Report are identified in T[100], [102] and [104]-[105]. It also expressed some concerns regarding the offer of employment by Mr Nguyen and the sustainability of the potential employment even though it accepted that the offer of employment was genuine. This matter was important because of its relevance to Mr Watson-Munro’s evidence that he considered that stable employment would reduce the chances of the applicant re-offending.

69    Fourthly, in the light of the AAT’s expressed concerns with the reliability of the final conclusions on the risk of re-offending in both experts’ reports and its concerns regarding the sustainability of Mr Nguyen’s offer of employment, the AAT made a key finding at T[111] (see [20] above]) that the risk of the applicant re-offending was “within the ranges” provided by Mr Green and Mr Watson-Munro. The AAT then added at T[111] that it found that there is “a ‘low’ to ‘low to moderate’ risk” of re-offending, a finding which it repeated in substantially similar terms in both T[113] and [114].

70    Fifthly, there are many ways in which an assessment of risk of a person reoffending may be expressed by a decision-maker. It might be expressed quantitatively (e.g. by a percentage figure or a range of percentage figures) or qualitatively (e.g. by categories along a spectrum such as “nil”, “low”, “low to moderate”, “moderate”, “moderate to high”, “high” or “certain”). Direction 65 does not stipulate any particular standard. How the AAT is to express its assessment of risk of re-offending is largely left to it.

71    Sixthly, both Mr Green and Mr Watson-Munro used qualitative assessments of the risk of the applicant re-offending, which were expressed respectively as “low to moderate” and “low”. Mr Green’s assessment of “low to moderate” necessarily involved an internal range from “low to moderate”, whereas Mr Watson-Munro simply assessed the risk as “low”.

72    Finally, against those background matters, the AAT’s approach and findings regarding the risk of the applicant re-offending are illogical or irrational in the relevant sense required by the authorities because:

(a)    in spite of the AAT’s stated concerns with the reliability of the final conclusions on recidivism in both experts’ reports, the AAT inexplicably proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend;

(b)    because of the AAT’s stated concerns with both experts’ conclusions, it would have been logical and rational for the AAT to have come to a determination of risk which was different from them both. Instead, the AAT illogically and irrationally determined to use both conclusions to mark` the limits of the range determined by it. I accept the applicant’s submission that the AAT effectively had an “each way bet”, which inexplicably drew upon the conclusions of both experts notwithstanding that the AAT was critical of both those conclusions; and

(c)    focussing as one should on the AAT’s reasons, no intelligible or rational justification is discernible for the AAT’s approach and findings on risk. For example, apart from saying that it had considered the sentencing judge’s views on rehabilitation, the AAT does not explain why it adopted as part of its range of the level of risk the conclusions of both experts notwithstanding its stated concerns with aspects of both experts’ final conclusions and parts of their analyses. It is left entirely unclear whether the AAT used those conclusions to define the outer limits of its assessment of risk based on selected parts of the experts’ analyses with which the AAT had no concerns, together with the additional material before it, including the oral evidence of Mr Watson-Munro, or some other undisclosed basis.

73    The illogicality is not overcome by the AAT’s description in T[114], [222] and [249] that it did not consider the risk to be “insignificant”. That reasoning is necessarily based upon the AAT’s earlier findings that there is a “‘low’ to ‘low to moderate’” risk or likelihood that the applicant will re-offend.

74    There can be no doubt that, assuming that the Tribunal’s reasoning and findings are illogical, they were material to its decision to dismiss the applicant’s review application. So much is apparent from the AAT’s reasons in T[114] relating to its assessment of the primary consideration of the protection of the Australian community, as well as at T[126] and [127] where the AAT took into account the risk of the applicant re-offending in determining the primary consideration of the best interests of the applicant’s daughter and step-daughter. Similarly, I have no hesitation in finding that the AAT’s error has sufficient gravity to rise to the level of a jurisdictional error.

75    There is one other matter to note. It relates to the validity of one of the matters relied upon by the AAT as giving rise to its concerns regarding Mr Watson-Munro’s Report. As is evident from T[100] and [101], the AAT considered that Mr Watson-Munro had acknowledged that, if the applicant had provided him with false information as to whether he had completed a Master’s degree in Australia, this may have affected his assessment of the applicant’s risk of reoffending. This does not accurately reflect Mr Watson-Munro’s evidence, as the applicant pointed out. I do not consider, however, that this error, standing alone, rises to the level of a jurisdictional error, nor does it inform a consideration of whether the AAT’s reasoning and findings are logical and rational.

76    It is understandable that the AAT said candidly at T[249] that it considered this to be a difficult case to decide. This Court is not concerned with the merits of the AAT’s decision. But for the reasons given above, ground 2 is upheld.

(c) Ground 3: relevance of two previous visa grant decisions

77    Ground 3 relates to the significance of the two previous decisions to grant the applicant a bridging visa and then a temporary partner visa and the implicit assumption that, at that time, the Minister did not have any character concerns despite the applicant’s convictions which provided the basis for his lack of good character for the purpose of the mandatory visa cancellation. As noted above, the AAT placed no weight on those previous decisions for the reasons explained by it at T[112].

78    It is principally a matter for the AAT to determine what weight, if any, it should give to this evidence. Its explanation for giving the decisions no weight is brief, but adequate. The AAT stated that it did not consider that those previous decisions evidenced that the applicant presented no risk to the community.

79    I am not persuaded that the AAT fell into jurisdictional error in relation to this matter. The AAT was correct to state that it was a matter for it to assess and determine the risk of recidivism based on all the evidence and material before it, as opposed to the unknown evidence and material which was taken into account by the Departmental visa decision-makers. Ground 3 is rejected.

(d) Ground 4: whether probative evidence to support the AAT’s finding that there was a “good chance” the applicant would not be granted a permanent partner visa

80    This ground should also be rejected. First, I accept the Minister’s submission that the AAT drew an available inference from the nature of the applicant’s visa which was mandatorily cancelled, namely that it was a temporary partner visa. Given its temporary nature, the applicant would have to be considered for a permanent partner visa, which necessarily would involve a character assessment. Having already failed the character test (namely on the present occasion), it was rational to infer that there was at least some chance that character concerns may mean the applicant would be unable to obtain a permanent partner visa. The degree of that chance necessarily involved some conjecture, but it was conjecture founded in rational considerations and of the kind that reasonable minds might differ on. In assessing the primary consideration of the best interests of the two children, it was open to the AAT to reason as it did, namely that even if the mandatory visa cancellation was revoked there was a good chance that the applicant would not be granted a permanent partner visa based on his character.

81    Secondly, and in any event, it is difficult to see the materiality of any error on the AAT’s part as alleged by the applicant. The AAT made clear several times that it considered that the best interests of the applicant’s children weighed heavily in favour of revocation of the mandatory visa cancellation (see T[138], [143] and [146]). This conclusion was reached notwithstanding the AAT’s view that it was “tempered somewhat” by the prospect that an application for a permanent partner visa may be rejected on character grounds (see T[145]). I do not think that anything of significance turns on the different language used by the AAT in T[136] (“good chance”) and that used in T[145] (“may still be rejected”). In its overall conclusions, the AAT stated at T[250] that the primary consideration of the best interests of the applicant’s two children “weighs significantly in favour of revocation of the cancellation decision”.

Conclusion

82    For these reasons, ground 2 of the amended originating application is upheld, but the other grounds are dismissed. The AAT’s decision dated 18 February 2019 will be set aside and the applicant’s application for review will be remitted to the AAT for reconsideration according to law. The applicant submitted that the reconsideration should be conducted by a differently constituted AAT. Having regard to the nature of the jurisdictional error which has been identified, I consider that there is considerable force in that submission but the Court prefers to leave the issue of the constitution of the AAT to its President. Costs will follow the event.

Associate:

Dated:    1 August 2019