FEDERAL COURT OF AUSTRALIA

BTZ19 v Minister for Home Affairs [2019] FCA 1301

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari is issued quashing the decision of the second respondent dated 11 February 2019.

2.    The matter be remitted to the second respondent, differently constituted, for re-determination according to law.

3.    The first respondent pay the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant is a citizen of Iran aged 36, who first arrived in Australia in 2012 as an unauthorised maritime arrival. From April 2014, over a period of approximately four and a half years until August 2018, the applicant was convicted of a number of offences, including driving without a licence, possession of stolen goods, possession of a prohibited drug and inducing a pharmacist to dispense false prescriptions. The drug-related offences involved the use of fentanyl patches.

2    In an application dated 23 August 2018, the applicant applied for a Bridging E (Class WE) visa. On 19 November 2018, a delegate of the Minister for Home Affairs refused to grant the applicant the visa, pursuant to s 501(1) of the Migration Act 1958 (Cth). Relevantly, the delegate was not satisfied that the applicant passed the “character test” set out in s 501(6) of the Act.

3    On 22 November 2018, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision, and on 11 February 2019 the Tribunal affirmed the delegate’s decision not to grant the visa; YFJP and Minister for Home Affairs (Migration) [2019] AATA 641 (11 February 2019).

4    The applicant then filed an application under s 476A of the Act in this Court, seeking orders that the decision of the Tribunal be quashed and the matter remitted to the Tribunal to be determined according to law. The final form of the Originating Application for Review contains the following three grounds (excluding particulars):

(1)    The Tribunal took into account irrelevant considerations and as a consequence fell into jurisdictional error;

(2)    The Tribunal misconceived its statutory function when assessing whether the applicant came within the provisions of ss 501(6)(c)(i) and (ii) and 501(6)(d(i) of the Act, thus falling into jurisdictional error;

(3)    The Tribunal made a finding which was legally unreasonable, in that it lacked an evident and intelligible justification. As a result, the Tribunal fell into jurisdictional error.

5    During the course of the hearing I granted leave to the applicant to add ground (3), on the basis that it more accurately reflected the legal basis upon which he was putting an aspect of his case (see [40] below). The Minister did not oppose the grant of leave. The parties exchanged written submissions concerning the ground after the hearing.

6    The applicant was represented in this Court by Mr Kline of counsel, who filed written submissions in advance of the hearing. The Minister was represented by Mr Kay Hoyle of counsel, who also filed written submissions.

2.    STATUTORY FRAMEWORK

7    Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

8    Section 501(6) relevantly provides that for the purposes of s 501, a person does not pass the character test if:

…

(c)    having regard to either or both of the following:    

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)     In the event the person were allowed to enter or remain in Australia, there is a risk that the person would:

    (i)    engage in criminal conduct in Australia.

…

9    The Minister, and by extension the Tribunal, must in considering refusal to grant the visa comply with Ministerial Direction No 65 (Direction 65). The terms of Direction 65 provide a framework within which decision-makers should approach their task, and failure to address those requirements may constitute a jurisdictional error; see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39] (Mortimer J); Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [41], [48] (Greenwood, McKerracher and Burley JJ).

10    Part B of Direction 65 identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. That part commences by identifying the three “primary considerations” to which a decision-maker must have regard, being (A) the protection of the Australian community from criminal or other serious conduct, (B) the best interests of minor children in Australia, and (C) the expectations of the Australian community. Of particular relevance to ground (2) of the application is the approach taken by the Tribunal to primary consideration (A).

11    In this regard, paragraph 11.1.1 identifies the following matters that the Tribunal must have regard to concerning the nature and seriousness of the visa applicant’s conduct:

(1)    In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

c)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

d)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

e)    The sentence imposed by the courts for a crime or crimes;

f)    The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

g)    The cumulative effect of repeated offending;

h)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

i)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

12    Annex A of Direction 65 addresses the application of the character test.

3.    THE DECISION OF THE TRIBUNAL

13    The Tribunal identified that the issues for consideration were first, whether the applicant passes the character test as defined in s 501(6) of the Act and secondly, if he does not, whether the discretion in s 501(1) of the Act should be exercised to refuse the grant of the visa.

14     In relation to the character test, the Tribunal first provided at [13] a summary of the applicant’s criminal offending in Australia which involves 8 offences being as follows: on 14 April 2014 he was convicted of “Never licensed person drive vehicle on road – first offence” and fined $400. On 30 April 2013, he was convicted of “induce pharmacist to dispense false prescription” and fined $800. On 23 July 2014, he was convicted of “possess prohibited drug” and fined $200. On 28 February 2017, he was convicted of “enter inclosed [sic] land not prescribed premises without lawful excuse” and a conviction was recorded with no other penalty. On 21 June 2017, he was convicted of “possess prohibited drug” and fined $200. On 16 May 2018, he was convicted of “goods in personal custody suspected being stolen (not motor vehicle)” and fined $300, and on 10 August 2018 he was convicted of four offences being “never licensed person drive vehicle on road – prior offence”, “goods suspected stolen in/on premises (not motor vehicle)”, “obtain prohibited drug from an authorised person with intent to deceive” and “obtain or attempt to obtain prohibited drug by false representation”. The combined penalty for the 10 August 2018 offences was that the applicant was disqualified from driving for three months for the driving offence, and fined $110 for each of the remaining offences.

15    The Tribunal at [14] also considered a “Facts Sheet” provided by the NSW Police detailing the circumstances of the August 2018 offences. This was influential in the Tribunal’s consideration of the application, and warrants repetition, despite its length:

•    “Some of the offences committed by the accused [the Applicant] have been on-going for a lengthy period of time and involve deceiving medical practitioners into issuing false prescriptions”;

•    “The accused, [The Applicant], committed these offences with one known associate...”;

•    When the police approached the Applicant’s vehicle, they “..observed the accused, [the Applicant], seated in the drivers seat and the co-accused... seated in the front passenger seat. Police requested [the Applicant] produce a license to which he was unable to do.”;

•    “Checks on [the Applicant] revealed that he has never held a license within Australia and has been previously charged as such...”;

•    “Further checks revealed certain intelligence to police and whilst speaking to the accused police observed him to be nervous, fidgeting and unsettled”;

•    “...Whilst searching [the Applicant] police located within his wallet 8 prescription stickers for ‘Fentanyl 100 mcg – 5 patches’ Each prescription was issued by a variety of doctors in different names”;

•    “...the prescription stickers clearly state that you must only take one patch every two days and within the above dates...[the Applicant] had received upwards of 40 patches in which police were aware of [sic]”;

•    Police obtained a search warrant on 29 May 2018. That warrant “...authorised police entry and search powers for unit [address omitted], NSW relating to an investigation into the supply of the prohibited drug, Fentanyl, from the premises”;

•    Upon execution of the search warrant, police noted that “Within the room of [the Applicant], police located 5 prescription stickers in the name of [the Applicant] for Durogesic 100 mcg (Fentanyl) patches inside his wallet and a further 6 stickers inside a suitcase”;

•    While executing the search warrant, police further noted that “Also located within the suitcase was red & black pouch. Inside the pouch was a Commonwealth Bank Mastercard and Malaysian ID... [The Applicant] later advised police he had located the items within his unit complex approximately 2 months prior and at no stage made any attempts to locate the owner nor take the items to a police station...”;

•    Police also executed a search warrant in relation to a black Holden Captiva and noted “...Located in vehicle were numerous pharmacy receipts and documentation in relation to obtaining Durogesic 100 mcg (Fentanyl) in the name of [the Applicant]...”;

•    “[the Applicant] participated in electronically recorded interview where he made full admissions of the offences. [The Applicant] informed police he attended multiple doctors within days requesting new prescriptions for Fentanyl”; and

•    “[The Applicant] also stated he works in construction as a labourer with no current injuries. Subsequently, [the Applicant] made admissions of obtaining the prohibited drug under false representation.”

16    The Tribunal then considered the application of s 501(6)(c)(i) and (ii) of the Act. The Tribunal expressed the view that the applicant’s conduct, viewed in totality, is indicative of a lack of enduring moral quality and that there was no recent good behaviour weighing in his favour. It then set out the factors in [5.1] of Annex A of Direction 65.

17    The content of [24] and [25] of the reasons is relevant to an aspect of ground 1 of the application and is as follows:

[24]    The Respondent rightly makes the concession that there was no violence involved in the Applicant’s offending. Be that as it may, his offending has been dealt with via numerous impositions of fines, disqualification from driving and the recording of a conviction but with no further punishment. What cannot be ignored is the frequency of the Applicant’s offending. He has been in this country since mid-2012. As at the end of last year, he had been a member of the Australian community for something in the order of 78 months. In that time, his offending conduct has caused him to be dealt with by lawful authority on 14 April, 30 April and 23 July 2014, plus 28 February and 21 June 2017, plus 16 May and 10 August 2018. This comprises seven episodes across 78 months, which equates to roughly one sentencing episode every 11 months during his time in this country.

[25]    Put another way, the Applicant’s criminal history runs for a period of four years, from April 2014 to August 2018. This four year period has seen him commit ten offences, the most recent of which he was convicted on 10 August 2018 – barely five months before this hearing. Whichever way one interprets the history, it cannot be denied that the Applicant’s offending is of a frequent and repeated nature.

18    The Tribunal referred to the seriousness of the offending, noting that the applicant had committed multiple frauds on medical professionals for the specific purpose of inducing them to wrongly prescribe or dispense drugs to him. It considered that this was deliberate conduct. The Tribunal went on to say:

[27]    The abovementioned factual history recorded by the New South Wales Police at the time of the Applicant’s sentencing episode on 10 August 2018 demonstrates this fraudulent conduct has been perpetrated by the Applicant on at least eight medical doctors or pharmacists. This conduct is demonstrative of two things. First, the Applicant has not understood or taken heed of the very visible and vocal governmental and community campaigns against the scourge of prohibited drugs on the Australian community. Second, although the evidence is scant, one can only be left to wonder what the ultimate end-use the Applicant sought to make of the drugs he unlawfully induced from third parties under false pretences.

19    The Tribunal then turned to consider the applicant’s reliance on medical evidence and his explanation for committing the drug related offences being a drug addiction. It pointed to inconsistencies between his explanation for that addiction, which the applicant contended arose because he was self-medicating for back pain, and the police Facts Sheet that indicated that he was in possession of upward of 40 fentanyl patches despite the prescription stickers stating that only one should be taken every two days. Further, the Tribunal found that there was no evidence that the applicant had ever been prescribed Fentanyl and that his evidence that he suffered from back pain was inconsistent with earlier statements to the police that he had no current injuries. The Tribunal then noted at [33] – [34] that the Refugee Review Tribunal (RRT) had in 2013 found the applicant not to be a witness of truth. The Tribunal was not satisfied with the explanations provided by the applicant, considering them to be part of a general course of conduct in which he sought to supply artificial and self-serving explanations for his conduct, and concluded that he lacked credit. It found that his history demonstrates little or no hesitation in committing repeated offences, including serious offending in misleading medical professionals to provide drugs, and his refusal to obtain a driver licence. It concluded that he is does not pass the character test within s 501(6)(c)(i) and (ii).

20    The Tribunal then also considered whether the applicant satisfied the character test under s 501(6)(d)(i). It identified that this subsection is focussed on assessing the risk of the person engaging in any criminal conduct in Australia in the future, which involves identifying the factors pointing to an ascertainable risk that the applicant would do so. In this regard, the Tribunal found that the applicant has a history of persistent offending every 11 months since he has been in Australia, with repetition of similar or the same offences. The penalties imposed have not deterred further misconduct. There was little or no evidence of rehabilitation and the Tribunal considered that the applicant’s evidence showed a lack of insight into the history of his offending and of “his substance abuse issues that lie at the root of the problems he has had with lawful authority”. It considered that the risk of the applicant committing further similar offences to be “genuine and real” and that accordingly the requirements of s 501(6)(d) were also enlivened.

21    The Tribunal then, in a lengthy part of its reasons from [52] – [201], turned to consider the discretion to refuse the visa.

22    It first considered the three primary considerations identified in Direction 65. In relation to primary consideration (A), the Tribunal gave a detailed summary of the evidence having particular regard to the evidence given by and on behalf of the applicant in relation to each of the offences.

23    The Tribunal turned specifically to consider the nature and seriousness of the applicant’s conduct to date, having regard to paragraph 11.1.1 of Determination 65, and said:

[111] Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which relevantly includes the following:

   (a) ...

   (b) ...

   (c) ...

(d)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   (e) ...

(f)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

     (g)    The cumulative effect of repeated offending;

(h)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (i) ...

24    The Tribunal considered the substance of each of sub-paragraphs (d), (f), (g) and (h) in paragraphs [112] – [130]. The Tribunal then found at [114] and [115]:

[114]    The Facts Sheet prepared by the New South Wales Police leaves the reader in no doubt that the Applicant’s unlawful conduct relating to his fraudulent obtaining of opioid drugs from medical professionals does not just involve him acting alone to satisfy or satiate his own unresolved addiction issues with those substances. The NSW Police were clearly acting on intelligence and information about the Applicant, his associate (and co-offender), the Edgecliff premises where they were residing and the Black Holden Captiva vehicle they were driving. Police do not go to the time, trouble and expense of obtaining and executing multiple search warrants if they are not very concerned about the conduct they are investigating.

[115]    Those search warrant results yielded serious and significant evidence against both the Applicant and his co-offender. The quantities seized or identified were not for the sole use of one person. This is clear and undeniable from the abovementioned Facts Sheet.

25    The Tribunal then considered the risk to the Australian community as required by Direction 65 (paragraph 11.1.2(1)) at [131] – [150]. It concluded, in relation to primary consideration (A) that the applicant had demonstrated unwillingness or inability to control or moderate his behaviour, and that there is a strong likelihood that he will engage in further serious conduct and harm others were he to re-offend. It considered that primary consideration (A) weighed strongly in favour of refusing the visa. Primary consideration (B), the best interests of minor children in Australia, was not relevant to the facts. Primary consideration (C), the expectations of the Australian Community, was of relevance, and the Tribunal considered this in [154] – [191], concluding at [192] that this factor also weighed strongly in favour of refusal to grant the visa.

26    In relation to the “other considerations” set out in Direction 65, the Tribunal records that none save for the question of international non-refoulement obligations arose in the present case. These it considered at [196] – [200] before concluding that this factor was of neutral weight.

27    The Tribunal concluded at [202]:

The Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in Direction No. 65. Primary Considerations A and C weigh strongly in favour of refusal. I have assigned no weight to Primary Consideration B, nor to any of the Other Considerations.

4.    THE APPLICATION FOR REVIEW

4.1    Ground 1: Taking into account irrelevant considerations

28    In ground 1, the applicant contends that the Tribunal took into account irrelevant considerations and as a result fell into jurisdictional error. The application initially identified 5 different bases for the alleged error, however, in oral submissions the applicant abandoned the last of these.

29    The relevant principles going to jurisdictional error arising by reason of taking into account irrelevant considerations and failing to take into account relevant considerations are well-known, and were not in dispute.

30    It is necessary to identify a consideration a decision-maker is bound to take into account or bound not to take into account. Such considerations are to be identified by reference to the subject matter, scope or purpose of the relevant Act; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 – 40 (per Mason J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73] – [74] (per McHugh, Gummow and Hayne JJ). The inquiry is to be conducted by reference to the Act, rather than the particular facts of the case, that the decision-maker is called upon to consider; Yusuf at [73].

31    The requirements of s 501(6)(c) of the Act are broad, and mandate that in considering whether a person does not pass the character test, regard should be had to the person’s past and present criminal and/or general conduct. Annex A of Direction 65 provides further guidance, emphasising that a person may be refused a visa if the decision-maker reasonably suspects that the person does not pass the character test (section 1(1)), and, in the case of persons being considered under s 501(6), the decision-maker must determine “on the basis of all relevant information” (section 1(2)). Paragraph 5 of section 2 amplifies the breadth of the enquiry by setting out a broad evaluative process, reiterating that “all the relevant circumstances for the particular case are to be taken into account to obtain a complete picture of the person’s character” (paragraph 5(3)). A person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of good character (paragraph 5(4)). Furthermore, paragraph 5.2(1) provides that the past and present general conduct provision “allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence”.

32    The discretion to be exercised under s 501(1) of the Act, assuming that a decision-maker concludes that the applicant fails the character test, is also governed by Direction 65. The principles set out in Direction 65 identify mandatory relevant considerations that must be taken into account. The primary considerations include the protection of the Australian community from criminal or other serious conduct. Considerations to be taken into account in this regard include the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences (paragraph 11.1). Whilst Direction 65 identifies mandatory considerations, it does not expressly purport to confine considerations that may be taken into account in considering the exercise of the discretion.

4.1.1    Particulars (i) and (iv)

33    The applicant contends that at [27], [114] and [115], the Tribunal assessed the applicant’s criminality, and therefore the question of his character, on a speculative assumption that he was selling drugs, an assumption that was not supported by any evidence, was not the subject of any charges, was not suggested by the police, and in circumstances where the Tribunal itself accepted that the applicant’s real issues lay with his unresolved addiction to opioids. The Minister disputes this characterisation of the reasons of the Tribunal, and contends that even if it is correct that the Tribunal made a finding that the applicant engaged in his criminal conduct to obtain drugs otherwise than for personal use, that does not sound in jurisdictional error as consideration of the material within the NSW Police Facts Sheet was not an irrelevant consideration that the Tribunal was necessarily obliged by the statutory framework not to take into account. Additionally, the finding was open based on the material before the Tribunal.

34    For the following reasons I accept with the Minister’s submissions.

35    The first focus is [27] of the decision, which is located in the part of the reasons that applies the character test, and concerns the application of s 501(6)(c). Accordingly, the considerations the decision-maker must take into account, and the considerations that the decision-maker may not take into account, are to be drawn from the legislative scheme represented in s 501(6) of the Act and the relevant parts of Annex A of Direction 65. As noted above at [31], paragraph 5.2(1) of Annex A specifically obliges the decision-maker to have regard to criminal and general conduct where convictions may not have been recorded, or where the person’s conduct may not have constituted a criminal offence.

36    The Tribunal had before it the Facts Sheet that set out the circumstances of the applicant’s offending in 2018. There was no challenge by the applicant to the accuracy of that Facts Sheet, and its contents were plainly something that the Tribunal was entitled to take into account. The Tribunal’s reasons included a detailed summary of the contents of the Facts Sheet, which is set out earlier in these reasons at [15]. Amongst the information contained in it are the following matters:

(1)    Police searches located: (a) within the applicant’s wallet, 8 prescription stickers for ‘Fentanyl 100mcg – 5 patches’ issued by a variety of doctors in different names; (b) within his wallet on another occasion, a further 5 prescription stickers in the name of the applicant for Fentanyl; (c) a further 6 stickers inside a suitcase in the applicant’s room; and (d) within the vehicle in which he was apprehended, numerous pharmacy receipts and documentation in relation to obtaining Fentanyl in his name;

(2)    The prescriptions state that the patient must only take one patch every two days and within certain dates;

(3)    The applicant had received “upwards of 40 patches” of which the police were aware;

(4)    The applicant said to the police that he worked as a labourer with “no current injuries”;

(5)    The applicant admitted obtaining the prohibited drugs under false representation.

37    Having regard to this evidence, it is difficult to see how the Tribunal’s statement in [27], to the effect that one might wonder what the ultimate end use the applicant sought to make of the drugs, was an irrelevant consideration. Plainly enough the broad matters identified under s 501(6)(c), having regard to paragraph 5 of Annex A to Direction 65, mandate that the decision-maker consider both criminal and non-criminal activity. In postulating that the amount of drugs taken by the applicant may not have been for his own end use (in circumstances where it appeared to the Tribunal that he did not have an injury), the Tribunal was entitled to take into account the contents of the Facts Sheet and consider its significance. Certainly, nothing within the scope or content of the legislative scheme enables a conclusion to be drawn that consideration of the drugs’ end use, or the Facts Sheet, was forbidden, and accordingly irrelevant.

38    A similar conclusion may be reached in relation to the passages at [114] and [115], although the Tribunal’s consideration of the matter has by this point crystallised into a positive finding that the drugs seized were not for the sole use of the applicant. It will be recalled that [115] is in that part of the Tribunal’s reasoning directed towards the exercise of its discretion under s 501(1). It says (emphasis added):

Those search warrant results yielded serious and significant evidence against both the Applicant and his co-offender. The quantities seized or identified were not for the sole use of one person. This is clear and undeniable from the abovementioned Facts Sheet.

39    As I have noted, Direction 65 sets out matters which a decision-maker must take into account in the exercise of the discretion under s 501(1) of the Act. The broad discretion conferred by the legislative scheme required the Tribunal to give consideration to the nature and seriousness of the offences and the general conduct of the applicant. It was not irrelevant for it to consider the Facts Sheet and draw conclusions about the statements therein. Put another way, it cannot be said that the Tribunal had regard to an irrelevant consideration by considering these matters. To the contrary, the broad scope of the discretion as elucidated in Direction 65 indicates that consideration of the nature of the criminal or other conduct of the applicant is within the purview of the legislative scheme. The Tribunal was not forbidden from considering it or, to put it more clumsily, the subject was not a mandatory irrelevant consideration.

40    During the course of argument, the applicant appeared to characterise the error on the part of the Tribunal as being a misconstruction of the Facts Sheets, and an error because the information contained therein does not support the proposition that the applicant obtained the fentanyl for the use of others. The Minister accepted that this contention may give rise to a ground of review to the effect that there was an absence of evidence to support the Tribunal’s reasoning, or that the decision of the Tribunal may be legally unreasonable, rather than in the terms of ground 1 (not conceding that such a ground might succeed). This led to an application on the part of the applicant for leave to amend the grounds of review, and a timetable for the provision of further written submissions. As I have noted, I granted that leave, which gave rise to ground (3) in the present application, which I address later in these reasons.

4.1.2    Particular (ii)

41    In the second particular, the applicant contends that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration when it said at [31] (emphasis added):

When confronted with the possible reality of his visa being refused, the Applicant engaged medical expertise in an effort to explain the reasons behind his conduct in inducing medical professionals to wrongly prescribe or dispense drugs to him. According to the Applicant:

“Part of the reason for some of my offences is that I was self treating for my back pain, which is made worse when I go to work. I attach a report from Dr [name redacted] dated 15 November 2016 which notes the medical problems with my back…

When I was outside Immigration Detention I obtained Fentanyl Patches to stop the pain, but I did that too much. I also took other drugs to stop the pain.”

42    The applicant submits that the Tribunal misunderstood that it was appropriate and desirable for an applicant to put on an explanation for his criminal conduct, which in this case was that he was self-treating for back pain. Accordingly, the Tribunal wrongly considered the provision of an explanation for his conduct was for nefarious purposes.

43    In my view this aspect of ground 1 is without merit. At [31] the Tribunal was addressing the explanation given by the applicant for his conduct. In the next paragraph, the Tribunal goes on to set out a number of reasons why it considers there to be “significant difficulties” with the explanation. One of those is that the claim to suffer back pain was inconsistent with other evidence to the effect that he had no injuries. The Tribunal did not take into account an irrelevant consideration in questioning whether the explanation offered by the applicant was not credible.

4.1.3    Particular (iii)

44    In the third particular of ground 1, the applicant contends that in taking into account an adverse finding of credit of the RRT six years earlier, the Tribunal at [33] and [127] – [130] took into account an irrelevant consideration. This aspect of ground 1 is appropriately to be considered together with the second particular of ground 2, which for convenience I do now.

45    The reasoning process of the Tribunal in this regard is set out at [19] above. Plainly enough it is within the discretion of the Tribunal to take into account matters of credit. The applicant submits that by taking into account the credit findings of the RRT, the Tribunal either took into account a mandatory irrelevant consideration, or misconceived its statutory function, having regard to the scope of Direction 65 at paragraph 11.1.1(1)(h), which provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to “whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending”.

46    In my view, the Tribunal did neither. Nothing in the scheme of s 501 supports the proposition that an applicant’s prior immigration history, or prior statements that he or she makes, are irrelevant in the sense of being forbidden to be taken into account, as the ground of taking into account an mandatory irrelevant consideration would require. Furthermore, the language of consideration (h) in paragraph 11.1.1(1) of Direction 65 is such that the decision-maker is obliged to consider whether false or misleading information has been provided to the department. There may be questions about the weight that may be attached where the prior statements were made some 6 years earlier and in circumstances remote from the questions before the Tribunal, but the question of weight is a matter for the Tribunal and does not sound in jurisdictional error.

4.2    Ground (2): Tribunal misconceived its statutory function

47    In ground 2, the applicant contends that the Tribunal misconceived its statutory function when assessing whether the applicant came within the provisions of ss 501(6)(c) and (d) of the Act. In argument, the basis for the error was clarified as being that the Tribunal failed to take into account mandatory relevant considerations as set out in Direction 65. The ground as pleaded includes four separate particulars. At the hearing the applicant abandoned two. The remaining bases for the application, as further developed during the course of oral argument, are addressed below.

48    In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Full Court said at [34] (emphasis added):

The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all:  SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material.  Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked.  The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact.  But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all.  The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material.  In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight:  MZYTS at [52].

See also HSKJ at [43] – [47].

49    In Minister for Home Affairs v Ogawa [2019] FCAFC 98, Davies, Rangiah and Steward JJ said at [103]:

There is a distinction between the making of a decision by the Minister and the written notice given under s 501G(1) of the Act setting out his or her reasons: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at [40]. The distinction is that the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker: He at [79]. It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47]. It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:

76         The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

4.2.1    First particular

50    The applicant first contends that the Tribunal failed, in accordance with its obligation under s 499 of the Act, to consider the mandatory consideration set out in Direction 65 at paragraph 11.1.1(e), which provides:

In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

...

(e)    The sentence imposed by the courts for a crime or crimes.

51    He submits that this may be seen from the content of [111] of the decision, set out at [23] above, where it is apparent that the Tribunal did not consider this sub-paragraph to be relevant to the present matter.

52    The Minister rightly accepts that s 499(2A) of the Act requires the Tribunal to comply with Direction 65, but submits that what is required by compliance is “another question”. He accepts that there is no express reference to consideration (e) in the course of the Tribunal’s analysis of the factors in paragraph 11.1.1, but submits that earlier in the decision at [13] and [24], in a different context, the Tribunal refers to the nature and severity of the criminal conduct, and it may be inferred in reading the balance of the reasons that the Tribunal determined that despite this, the other factors set out at [111] – [130] were such that a finding that the conduct was serious was justified.

53    At [13], the Tribunal lists the criminal offences and the penalties set out at [14] above. At [24], the Minister notes that no violence was involved in the Applicant’s offending and then says:

...Be that as it may, his offending has been dealt with via numerous impositions of fines, disqualification from driving and the recording of a conviction but with no further punishment. What cannot be ignored is the frequency of the Applicant’s offending. He has been in this country since mid-2012. As at the end of last year, he had been a member of the Australian community for something in the order of 78 months. In that time, his offending conduct has caused him to be dealt with by lawful authority on 14 April, 30 April and 23 July 2014, plus 28 February and 21 June 2017, plus 16 May and 10 August 2018. This comprises seven episodes across 78 months, which equates to roughly one sentencing episode every 11 months during his time in this country.

54    I have noted earlier that the decision is divided into two parts. The first concerns the character test and the second the exercise of the discretion under s 501(1) of the Act. The paragraphs relied upon are in the first part.

55     In the present case, the question is whether it may properly be inferred that the Tribunal took account of consideration (e) of paragraph 11.1.1 of Direction 65, when having regard to Primary Consideration A, and the nature and seriousness of the applicant’s conduct to date. In my view it cannot.

56    First, in [111] the list of factors to be considered by the Tribunal to be relevant does not include factor (e). This is not a promising start.

57    Secondly, the balance of [111] – [130] sets out comprehensively the reasoning of the Tribunal in relation to its consideration of the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, but does not expressly or implicitly refer to the sentences imposed by the court. It refers to factor (d) and concludes that the conduct that forms the basis for the failure of the character test supports a finding that the applicant’s offending is to be considered serious. It then considers that having regard to the frequency and nature of the applicant’s offending (factor (f)), including multiple frauds upon medical professionals, the applicant’s conduct should be viewed seriously. After referring to the Facts Sheet and making the findings at [114] and [115] (to which I have already referred), the Tribunal concludes that the frequency of offending and its trend of increasing seriousness is a factor pointing to the seriousness of his unlawful conduct to date ([118], [121]). The Tribunal also considers the cumulative effect of the applicant’s offending in factor (g), and reaches the same conclusion (at [126]). Next, the Tribunal considers that by reason of the provision by the applicant of false or misleading information to the department (factor (h)) in the course of his application for refugee status, it should be concluded that factor (h) strongly supports the exercise of the discretion to refuse the visa.

58    Thirdly, the overall structure of the decision is such that the Tribunal (at considerable length) addressed all of the factors it considered relevant first to the question of the character test and next the exercise of discretion. It is apparent that the Tribunal considered these aspects separately. Whilst the Tribunal referenced the sentences received by the applicant in [13] and [24], that was in the introductory and character test application parts of the decision, rather than where the Tribunal considered the exercise of its discretion under s 501(1). It is evident from the structure of the reasoning at [111] – [130] that the Tribunal did not have regard to the applicant’s sentences where paragraph 11.1.1 of Direction 65 stipulated it must, specifically in its consideration of the nature and seriousness of the applicant's criminal offending or other serious conduct to date.

59    Finally, in the present case, one would have expected explicit reference to be made to the sentences given, because the penalties imposed were modest. There was no custodial sentence and in one instance – in relation to his offence of entering enclosed land without lawful excuse in 2017 – the applicant received a conviction with no penalty. For the balance of the offences, including the August 2018 crimes of obtaining prohibited drugs from an authorised person with intent to deceive, the applicant was sentenced to pay fines ranging from $800 for the April 2013 offence, to $110 for each of the August 2018 offences. Yet nowhere in the balancing exercise conducted by the Tribunal is reference made to these sentences. One would have expected them to be raised, not least because the severity of the sentences imposed might be considered to stand in contrast to the conclusion that the Tribunal reached as to the seriousness of the offences. Furthermore, the language used by the Tribunal in [126] additionally suggests that, contrary to the submission advanced by the Minister, in fact the Tribunal did not take into account consideration (e). There it said (emphasis added):

The cumulative effect of the Applicant’s repeated offending can be seen in (1) its increasing sophistication and thus seriousness and (2) the stark reality that whatever punishment or sentence he received for his offending in 2014 had no deterrent effect...”.

60    I am not satisfied that the words “whatever punishment or sentence he received...” convey consideration of the actual sentences that had been imposed on the applicant.

61    In the result, I do not accept the submission advanced by the Minister that from the references in [13] and [24] it may be inferred that, in the balance of the decision, the Tribunal took into account mandatory consideration 11.1.1(e). A fair reading of the whole of the decision does not bear this construction.

62    The Minister accepts that in the event that it is concluded that the Tribunal failed to take into account consideration (e), then it must follow that a jurisdictional error has been established. Accordingly this ground of review succeeds.

4.2.2    Second particular

63    The second particular relied upon is that the Tribunal misconceived its statutory function when it took the view that findings of credit made by the RRT were relevant in the consideration of the credit of the applicant. For substantially the reasons set out in relation to particular (iii) of ground (1), this ground must also be rejected.

4.3    Ground (3) – unreasonable

64    In ground 3, the applicant contends that the reasoning of the Tribunal was legally unreasonable insofar as it found that the applicant, when committing the offences identified in the police Facts Sheet, was involved in more than satisfying his own drug addiction.

65    The principles concerning legal unreasonableness are uncontroversial. Concepts of legal unreasonableness applied to fact-finding are ultimately referable to the broader principles delineating the proper limits of the exercise of statutory power, which are subject to an implied constraint that they be exercised reasonably; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] – [30] [63], [88]. Reasonableness is informed by the subject matter, scope and purpose of the legislation in question; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [12], [13] (Keifel CJ). Recently in Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court (Reeves, O’Callaghan and Thawley JJ) explained at [61] that:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power.

66    Having regard to this guiding principle, the question of whether a conclusion of legal unreasonableness may be drawn is not capable of being reduced to a single formula, but depends on the particular circumstances of the case, having regard to guidance provided by cases such SZVFW and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ).

67    In the present case, the applicant contends that, having regard to the reasoning set out in [27], [114] and [115], the “Tribunal allowed itself to assess the applicant’s criminality and therefore ultimately the question of his character, on the speculative assumption that he was selling drugs...” He submits that this conclusion was legally unreasonable, because the Tribunal accepted at [120] that the applicant’s real issues lay with his addiction to opioids.

68    I have summarised above the matters that may be drawn from the police Facts Sheet. The inference drawn by the Tribunal at [115] was that the quantities seized or identified were not for the sole use of one person. Further, at [120] the Tribunal finds that the applicant’s “unresolved addiction issues have now caused him to escalate his conduct from the unlawful obtaining of those substances into a more commercially derived modality of supplying such substances unlawfully”. The first respondent argues that in finding so, the Tribunal assessed the applicant’s criminality on the basis that he was selling drugs where there was no evidence of that and where the police had not suggested that. However, the police said in the Facts Sheet that a search of the applicant’s house, which uncovered the drugs the subject of one possession conviction, was related to “an investigation into the supply of the prohibited drug, Fentanyl, from the premises”. While a “supply” does not necessarily mean that that money was involved, it was open to the Tribunal conclude that this evidence, in combination with the relatively large amount of prohibited drugs found by the police, meant that the applicant’s conduct had escalated to commercial supply of prohibited drugs. Further, the fact that the applicant was only convicted of possession does not equate to a positive finding in the evidence that the applicant did not supply prohibited drugs, and so the Tribunal’s decision could not be said to be illogical or irrational on that basis. Paragraph [115] of the decision was directed to consideration of the nature and seriousness of the applicant’s conduct. As considered above at [31] – [39], the decision-maker is left with a broad range of matters to be taken into account when determining this subject. The Full Court’s decision in Stretton makes it clear that the correct approach is to assess whether the Tribunal’s decision “should be characterised as one which was not a reasonable and rational exercise of the power made in furtherance of the protection of the Australian community”: see [21] – [22] per Allsop CJ. It was not unreasonable or irrational to consider the quantity of drugs taken and their potential uses when considering this matter. Nor can it be said that the inferences drawn from the materials available to the Tribunal were illogical or unreasonable. This ground must be dismissed.

5.    DISPOSITION

69    For the reasons set out above I conclude that the application for review succeeds. The appropriate orders are as follows:

(1)    A writ of certiorari is issued quashing the decision of the second respondent dated 11 February 2019;

(2)    The matter be remitted to the second respondent, differently constituted, for re-determination according to law;

(3)    The first respondent pay the applicant’s costs of the proceedings.

Associate:

Dated:    19 August 2019