FEDERAL COURT OF AUSTRALIA

LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue directed to the second respondent, quashing its decision made on 9 August 2018.

3.    A writ of mandamus issue directed to the second respondent, requiring a Tribunal constituted differently to the Tribunal that made the decision of 9 August 2018 to determine the applicant's application for review according to law.

4.    The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

5.    The applicant has liberty to apply in relation to his costs.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant entered Australia in 2004 on a refugee visa after fleeing his native country, which is now known as the Republic of South Sudan. From April 2005 he was convicted of numerous offences, in the order of 100, ranging from disorderly conduct to possession of methylamphetamine and cannabis, stealing a motor vehicle, assaulting public officers, and unlawful wounding including in circumstances of aggravation. The applicant was convicted of these last, unlawful wounding, offences in November 2014 and was sentenced to 18 months and 12 months imprisonment, to be served cumulatively.

2    In February 2015 his refugee visa was cancelled by a delegate of the first respondent (the Minister) and in January 2017 the Assistant Minister for Immigration and Border Protection decided not to revoke that cancellation. On 24 February 2017 the applicant applied for a protection visa. On 17 August 2017 a delegate of the Minister refused to grant the protection visa. The applicant applied for review to the Administrative Appeals Tribunal. On 9 August 2018 the Tribunal affirmed the decision to refuse the visa. The applicant now seeks judicial review of the Tribunal's decision.

3    The applicant originally sought judicial review of the decision in the Federal Circuit Court of Australia. However the delegate refused to grant the visa because the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth) (the Act) had not been met, and also because s 36(2C)(b)(ii) of the Act meant that the applicant was taken not to have satisfied the criterion in s 36(2)(aa) of the Act. This meant that the Tribunal's jurisdiction to review the decision was conferred by s 500(1)(c) of the Act, which in turn meant that under s 476(2)(b), the Federal Circuit Court had no jurisdiction to review the Tribunal's decision. Accordingly, the Federal Circuit Court made an order transferring the application for review to this court. The jurisdiction of the Federal Court of Australia to review the Tribunal's decision is conferred by s 476A(1)(b) of the Act. Accordingly, the court may review the decision for jurisdictional error: s 476A(2); Sami v Minister for Immigration and Citizenship [2013] FCA 106 at [7]-[10].

4    The applicant was represented by a lawyer, acting pro bono, before the delegate, before the Tribunal, and when these proceedings were commenced. However on 23 May 2019 the applicant's lawyer advised the court that the applicant no longer wanted her to represent him, and she filed a notice of ceasing to act. At the same time she requested that an order be made for the appearance of the applicant in person at the hearing and that order was made.

5    The hearing was listed to take place on 18 June 2019. At the hearing, the applicant made an oral application to adjourn so that he could obtain the services of a pro bono lawyer. However he had been aware of the hearing date since the time before his lawyer ceased to act, and he had made no request for an adjournment at that time or at any time until the hearing. On 6 June 2019 he indicated to the court that he did not need to make a written submission at that stage, but gave no indication that he was seeking or wished to seek the services of another lawyer and gave no indication that the hearing might need to be adjourned.

6    The decision that the lawyer should cease to act was the applicant's choice. The reason he gave at the hearing for making that choice involved an allegation as to the conduct of the lawyer which was inherently implausible. Even if that allegation were to be established, there was no indication that he had tried to obtain alternative representation in the nearly four weeks between the lawyer ceasing to act and the date of the hearing. For those reasons I declined to grant an adjournment, and the hearing proceeded on 18 June 2019.

The legislation and the issue

7    The Minister's delegate had been satisfied that the applicant came within the definition of 'refugee' in s 5H of the Act and that there were substantial reasons for believing that, as a necessary and foreseeable consequence of his being removed from Australia to South Sudan, there was a real risk that he would suffer significant harm. However the delegate considered that the applicant failed to meet the criterion in s 36(1C)(b). Section 36(1C) states as follows:

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

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

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

8    Also, by reason of the similarly worded requirements of s 36(2C)(b)(ii), the delegate found that the applicant was taken not to meet the complementary protection criterion in s 36(2)(aa). It is worth noting that while these provisions involve concepts similar in some ways to those engaged by the refusal or cancellation of visas under s 501 for failure to pass the character test, the decision the Minister or his delegate makes under s 36(1C) is not a discretionary one. The long list of mandatory considerations familiar from ministerial directions and cases arising out of s 501 do not apply.

9    Section 5M defines a particularly serious crime to include 'a serious Australian offence' which, in s 5 is relevantly defined to include an offence that involves violence against a person and is punishable by imprisonment for a maximum term of not less than three years. It was common ground before the Tribunal that the applicant had been convicted of such offences. The sole issue was whether he was 'a danger to the Australian community'.

10    The applicant's background in South Sudan was particularly traumatic, involving torture at the hands of the North Sudanese authorities. He was diagnosed as suffering from post-traumatic stress disorder and paranoid schizophrenia. However those diagnoses were not made until January 2014, and the fact that until then the applicant was suffering from serious undiagnosed mental health issues was a significant contributing factor to his long history of offending since 2005. The key issue before the Tribunal was the extent to which the diagnosis and the availability of treatment, together with such opportunities the applicant might have had to reintegrate into Australian society, reduced the risk of reoffending to an acceptable extent.

11    The Tribunal found that it did not. It is necessary to summarise its reasoning in order to provide context for the consideration of the grounds of review.

The Tribunal's reasoning

12    In the present case, the Tribunal considered the considerations relevant to the assessment of whether an applicant was a danger to the Australian community to which Deputy President Tamberlin (acting in that capacity after his retirement as a judge of this court) referred in Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434 at [26]. They are:

    the seriousness and nature of the crimes committed;

    the length of the sentence imposed, and any mitigating or aggravating circumstances;

    the extent of the criminal history;

    the nature of the prior crimes, together with the period over which they took place;

    the risk of re-offending and recidivism and the likelihood of relapsing into crime, which is a primary consideration;

    the criminal record as a whole; and

    the prospects of rehabilitation.

13    The Tribunal took guidance from these considerations in reaching the decision presently under review, although it appreciated that it was not required to consider each in turn 'in a strict fashion'.

14    In relation to the totality of the applicant's offending, the Tribunal noted that his criminal record in Australia was extensive and included violent offending and multiple breaches of judicial orders. The sentencing remarks for some of the offences referred to the seriousness, violence and cruelty of the applicant's conduct. Even if the applicant's undiagnosed schizophrenia provided some explanation for the offending, the Tribunal focussed at this point on the nature and seriousness of the conduct, not the reasons for it.

15    In relation to mitigating factors, the Tribunal (and the Minister) accepted that the mental illness did reduce the applicant's culpability, but the applicant's condition was nevertheless relevant to the risk of reoffending. In that regard, the applicant submitted that he would receive treatment in the community that would reduce his risk of reoffending and that he was committed to avoiding alcohol and drugs. He further submitted that his mental health would not improve while he was in detention. The statement of facts, issues and contentions filed on his behalf said (at paragraph 49):

The most important change in the Applicant's life is that he is now very focused on his son. The Applicant now understands how his past choices have resulted in him being separated from his son and he wants to be able to have a close relationship with his son and be a part of his life daily. He understands that this means he must not reoffend, and he is committed to avoid all of the triggers that led to his past offending.

16    In relation to that, the Tribunal said (at paragraph 134):

The Applicant contends that the most important change in his life is his son and makes a number of related submissions as to his understanding that he must not re-offend (A1, paragraph 49). The Tribunal refers to paragraphs 21 to 27 above regarding the extent to which it can take these matters into consideration.

17    The Tribunal returned to the subject in footnote 17 to paragraph 168 of its reasons, where it said:

The Applicant also makes a number of submissions regarding his intentions to care for his son as being a strong protective factor. For the reasons stated at paragraphs 21 to 27 above, the Tribunal is unable to take these matters into consideration in the present application in the manner sought by the Applicant.

18    Paragraphs 21 to 27 of the reasons are as follows (original emphasis, footnotes omitted):

21.    The Tribunal's jurisdiction to review the present application arises from subsection 500(1)(c)(i) of the Act.

22.    The Applicant, in paragraphs 52 to 55 of his SFICs [statement of facts, issues and contentions] dated 6 October 2017 and in paragraphs 8, 9, 14, 15 and 16 of his closing written submissions dated 16 March 2018, contends that the prospect of indefinite detention and the best interests of the Applicant's son are relevant considerations in considering whether or not to grant the Applicant a protection visa. In support of these contentions, the Applicant relies upon the cases of NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 ('the NBMZ decision'), Minister for Immigration and Ethnic Affairs and Teoh (1995) 183 CLR 273 ('the Teoh decision') and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 ('the Lam decision').

23.    The NBMZ decision concerns the Minister's discretionary power under subsection 501(1) of the Act to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The Tribunal is of the view that there is no basis for the Minister's discretionary power in subsection 501(1) of the Act to have any application whatsoever to the Minister's power to grant or refuse a protection visa under section 65 of the Act, which by its wording 'must be satisfied' and is not a discretionary power. Put another way, the Tribunal considers that the relevant power in the NBMZ decision was discretionary, which is the not the case in the present application.

24.    The Teoh decision (and the Lam decision) concerns the legitimate expectation of the visa holder (to which the United Nations Convention on the Rights of the Child gave rise) that the Australian government would consider the best interests of his children when considering whether to grant or refuse resident status.

25.    The decision before this Tribunal refused the Applicant's application for a protection visa on the basis that the Respondent's delegate was not satisfied that the Applicant met the criterion in subsection 36(1C)(b) of the Act. The criterion in subsection 36(1C)(b) of the Act makes no reference to the character test in section 501 of the Act or to any legitimate expectation that a visa applicant may or may not hold.

26.    Therefore, the Tribunal has no jurisdiction in the present application to consider matters relating to the character test in section 501 of the Act (or indeed, any of the ancillary considerations set out in Direction No. 65) or to the legitimate expectation arising from the United Nations Convention on the Rights of the Child. Rather, the Tribunal notes that there exists no policy document or guidelines to inform it regarding its determination of what constitutes 'a danger' to the Australian community.

27.    The matters addressed at paragraphs 21 to 26 above form the basis of the Tribunal's position that any contentions as to the ramifications and impacts of refusing the Applicant the protection visa cannot be the focal point of the Tribunal's consideration. These ramifications and impacts can only, as with any matter put to the Tribunal for consideration, serve to inform the Tribunal's assessment of whether the Applicant will be a danger to the Australian community.

19    The Tribunal took the view that matters 'pertaining to the risk of reoffending, rehabilitation, reintegration and the like' should not be considered in isolation as they were necessarily interrelated. The applicant had submitted to the Tribunal that he managed his mental health with medication and was accepting of treatment, and that with his diagnosis and a reintegration plan he had provided, he intended 'to re-enter the community without posing any risk or danger to the Australian community' (original emphasis).

20    The Tribunal had 'a number of strong concerns with these submissions given the available evidence in its entirety'. In summary, the concerns were as follows:

(1)    The applicant had previously been under a Community Treatment Order (CTO) made under the Mental Health Act 2014 (WA) which provided for a certain level of treatment of his mental illness. However at the time of the Tribunal's decision he was no longer under a CTO and there was no indication that he would be in future. The reintegration plan that had been provided to the Tribunal referred to the applicant being on a CTO and continuing to have the support of the Bentley Mental Health Service, but the evidence was that he no longer had access to either of those. It was a concern to the Tribunal that he had not provided an updated reintegration plan addressing that.

(2)    The reintegration plan did not in any event fully address or accommodate the complexity of the applicant's mental and personal histories. The applicant had submitted that he had the support of a friend with whom he could live and who would find him a job and the friend gave evidence. But the Tribunal did not hear from the friend's wife about how she felt about the applicant living with her and her two young children, how long she understood the arrangement would be in place, what she would do if the applicant had an 'episode' in her presence or in the presence of the children, including if her husband was not there. The Tribunal went on (at paragraph 151):

While the Applicant's friend seemed to be reasonably confident that he would be able to respond to the Applicant relapsing or becoming violent in an appropriate manner, the Tribunal is unconvinced of this, having no documented evidence of the nature and extent of the Applicant's friend's training as a counsellor. The Applicant's friend also gave evidence that he had no experience looking after someone with a mental illness in Australia, but that he would be able to appropriately manage this situation, should it occur.

(3)    While the friend said he had known the applicant since 2010 or 2011 and that he knew him very well, they got to know each other, it was said, when they shared a prison cell for a time following the friend's fraud conviction in 2013, and since the friend had got out of prison the applicant had remained in detention so their contact had been limited. The Tribunal was concerned that this was not addressed in the applicant's evidence or that of the friend, or in the reintegration plan.

(4)    There was evidence that the applicant was non-compliant with his oral medication on a number of occasions in late 2017 and early 2018, which included 'continued non-compliance and relapse since the time of the hearing'.

(5)    As for rehabilitation courses, the applicant has completed a number of courses that had no long lasting effect. In the reintegration plan he stated that his mental illness was now properly treated and managed, which the Tribunal thought implied that no further rehabilitative courses were necessary other than certain violence education courses listed in the plan because '… [t]he situational determinants of his offending have been eliminated ...'. The 'situational determinants' were said to be the environment in which he lived with his ex-partner and her family and, most particularly, the detention centre environment, which the applicant characterised as 'his main negative situational determinant'. While the Tribunal accepted that the detention was a '"triggering" environment', it also considered that there was 'an association between the Applicant's continuation with treatment and his risk of re-offending'.

21    Overall, the Tribunal considered that the applicant's social and community support was somewhat limited and there was no documented evidence of an appropriate treatment plan for the future management of his mental health including his issues regarding non-compliance with medication. The Tribunal did not accept the evidence of a psychiatrist called on the applicant's behalf expressing confidence that the applicant would continue to take his medication and had 'good insight' into the need to do so, because the available evidence was that the applicant had not continued to take it consistently.

22    In its concluding remarks the Tribunal placed emphasis on:

… the evidence regarding the relationship between the Applicant's non-compliance with treatment and the risk of re-offending, the Applicant's history of violent behaviour when unwell and the barriers to the Applicant's rehabilitation and reintegration in the face of poor insight into his illness and substance abuse issues.

23    The Tribunal concluded that the applicant's 'risk of future violence remains at a level that no member of the Australian community should have to tolerate' and affirmed the delegate's decision to refuse the visa.

24    I will commence consideration of the grounds of review by dealing with the final ground, ground 6. That is because it is the ground with the most merit; as will be seen I consider that it should be upheld, so that the application for judicial review should be allowed. There is little merit in the other grounds and they can be dealt with more briefly.

Ground of review 6 - failure to consider applicant's relationship with his son

25    Ground of review 6 is as follows:

The Tribunal made a jurisdictional error by failing to consider the Applicant's relationship with his son as a protective factor against recidivism (CB 758 at footnote 17) when it is clear from WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (6 July 2009), per Tamberlin DP, at [26] and [46], that such a relationship is relevant to the Tribunal's decision.

26    The Minister submitted, correctly, that WKCG does not establish that the relationship between an applicant and his child in circumstances such as the present was a mandatory relevant consideration. I have already summarised [26] of that decision. It says that the risk of reoffending and recidivism and the likelihood of relapsing into crime is a primary consideration in determining whether a person constitutes a danger to the Australian community, but says nothing about the relevance of any relationship between an applicant and his or her children to that consideration. Paragraph 46 indicates that the Tribunal in WKCG took into account the fact that deporting the applicant in that case would remove the possibility of a relationship with the child developing. It is not clear how that was relevant to the assessment of the danger posed by that applicant to the Australian community. In any event, the Tribunal placed little weight on that factor.

27    Nevertheless, the possibility that the wish of the applicant in these proceedings to have a close relationship with his son would reduce the risk that he would reoffend was relevant to the assessment that the Tribunal was required to make here. Such a wish can serve as an incentive to comply with a mental health treatment plan including to take recommended dosages of medication, to get a job, to obtain and maintain a stable home environment, and to avoid reoffending and thus the risk of imprisonment or immigration detention.

28    In my view, the Tribunal did fail to consider that factor. I have already set out paragraph 134 of the Tribunal's reasons, and footnote 17 to paragraph 168, both of which say that the Tribunal could not take the matters raised in the submission into consideration. But that was wrong. The Tribunal could have, and should have, considered the possibility that the applicant's wish for a relationship with his son reduced the risk that he would reoffend. The Tribunal supported its view by reference to paragraphs 21 to 27 of its reasons, but they respond to a different point, namely a suggestion that the interests of the child were a mandatory relevant consideration.

29    Counsel for the Minister properly did not seek to contradict the view that the Tribunal had neither appreciated nor considered the applicant's submission. Nor did Counsel for the Minister object to the point being raised as a ground of judicial review, even though it might be argued that it is not put that way in ground 6.

30    The submission that the applicant's desire for a relationship with his son would reduce his risk of reoffending was clearly and distinctly made. As I have mentioned, it appeared in the applicant's statement of facts, issues and contentions in the Tribunal proceedings. It also appeared in written submissions to the delegate that were before the Tribunal, and in his primary written submissions to the Tribunal. There was support for it in a statutory declaration of the applicant that was put before the Tribunal.

31    In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 the High Court examined whether failing to deal with a claim entails jurisdictional error, because of a failure to perform the review function. Dranichnikov is relevant because, as in this case, the omission was the result of a misunderstanding or misstatement of an aspect of the applicant's claim. Mr Dranichnikov had claimed to be entitled to protection for Convention reasons because of his membership of a class of persons which he defined as businessmen in Russia who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime in Vladivostok and to protect Russian businessmen who protested. But the Refugee Review Tribunal proceeded on the basis that he was claiming protection as a member of the wider class of businessmen in Russia. Gummow and Callinan JJ (Hayne J agreeing) held (at [24]-[27], footnotes omitted):

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal ...

The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.

At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.

The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of 'businessmen in Russia' was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

32    Their Honours characterised this as a failure to exercise jurisdiction, entitling Mr Dranichnikov to a writ of certiorari: see [32]-[34]. Kirby J's reasoning was similar (see [86]-[89]). Gleeson CJ disagreed on the facts.

33    It may be that this conclusion was influenced by their Honour's view that the Refugee Review Tribunal had failed to discharge a fundamental part of its statutory task, namely to determine whether the group or class to which Mr Dranichnikov claimed to belong was capable of constituting a social group for the purposes of the Convention. It has been observed that under the statutory regime at issue in Dranichnikov, it was mandatory for the Refugee Review Tribunal to consider each basis of a person's claim to have a well-founded fear of persecution: see the discussion in Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79; (2012) 129 ALD 233 at [69]-[73] (Dodds-Streeton J).

34    It might be argued that the failure of the Tribunal in the present case was not as fundamental, as the Tribunal did answer the question posed by s 36(1C)(b) of whether it considered, on reasonable grounds, that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community. The problem was that in the course of coming to its answer to that question, the Tribunal did not consider a particular argument put to it.

35    Whether or not that is so, the relevant principles have evolved since Dranichnikov. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, French, Sackville and Hely JJ observed (at [44]):

It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Migration Act.

36    While their Honours were referring to the Refugee Review Tribunal's powers of review under the Act in relation to what are known as Part 7-reviewable decisions, the review powers which s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) conferred on the Administrative Appeals Tribunal in the present case are not materially different.

37    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63], Black CJ and French and Selway JJ developed the point this way:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be 'subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected': Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):

… If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.

Once again, I do not understand these principles to depend on the particular terms of s 414 of the Act.

38    The Full Court summarised the current approach in Singh v Minister for Home Affairs [2019] FCAFC 3. After referring to the need to engage in an active intellectual process directed at mandatory considerations, Reeves, O'Callaghan and Thawley JJ turned (at [34]) to discuss how a constructive failure to exercise the review jurisdiction may arise:

The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with 'review' may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

•    a 'substantial, clearly articulated argument relying upon established facts' - see: Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

•    a claim 'raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review' - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

•    a matter 'that is an essential integer to an applicant's claim or that would be dispositive of the review' - see: ETA067 v Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

39    Similarly, in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [13] the plurality summarised the effect of Dranichnikov as being that the Tribunal would fail to perform its duty of review if it 'failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case'. See also Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13 at [30] (Rangiah J).

40    In Singh at [35] the Full Court went on to repeat the caution expressed in other cases against taking the language of 'proper, genuine and realistic consideration' as effectively permitting merits review. As Basten JA explained in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], 'Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so "properly" or "genuinely", or "realistically" may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process'.

41    In Singh at [37] the Full Court also summarised what the cases say about how the reasons of the decision-maker are to be construed in order to determine whether it did have the necessary degree of engagement with the case, argument, claim or integer of the claim.

42    In the present case that question did not arise. For the reasons that I have outlined, it is clear that the Tribunal simply misunderstood and therefore overlooked the contention made here about the likely effect of the applicant's desire to have a close relationship with his son and to be a part of his life. Nor can it be said that a finding on the contention was subsumed in findings of greater generality, or that there was a factual premise upon which the contention rests which the Tribunal rejected.

43    This was not a mere failure to advert to evidence, as mentioned in Applicant WAEE at [46]. It was a contention capable of being dispositive of the review because, if accepted, it would have led to many of the Tribunal's concerns about the applicant's mental illness and the effect of that on his likelihood of reoffending to be allayed. The importance of the material to the exercise of the Tribunal's function, and thus the seriousness of any error, are important considerations here: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J). This contention was a matter going directly to the key criterion for the Tribunal's decision: cp. Applicant WAEE at [52]. In the words of Allsop CJ, Kenny and Snaden JJ in CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 at [76], the contention 'was sufficiently material that the Tribunal was obliged to consider it'.

44    Counsel for the Minister submitted that even if the failure to deal with the submission was an error, it was not a jurisdictional error because, in view of all the concerns the Tribunal had expressed, it could not realistically have resulted in a different decision. The Minister relied on SZMTA at [45]. Counsel also accepted, however, that 'the line might be finely drawn'.

45    I respectfully agree with counsel that the line is a fine one here. The Tribunal had strong concerns about the likelihood that the applicant's mental illness would be managed effectively if he were to be released into the community, about the likelihood of his reoffending if it were not, and about the potentially serious nature of any new offences. Those concerns were based on substantial grounds. Counsel for the Minister pointed out, in effect, that the applicant presumably already had a strong desire to be with his son (who is almost nine), during periods of detention, and yet on occasion he still failed to take his medication.

46    In PQSM v Minister for Home Affairs [2019] FCA 1540, Colvin J recently reviewed the authorities concerning the requirement that a failure to comply with a condition to the exercise of power must (usually) be material if it is to invalidate the decision. As his Honour observed at [64]-[65], the inquiry is a backward looking one into how the Tribunal in fact acted in the particular case, not a forward looking one into how future compliance with the condition might affect a fresh exercise of the power. I have therefore considered the question in light of the reasons of this Tribunal, and the approach that it in fact took to the matter, and the concerns that it in fact held.

47    On balance, I consider that the error here meets the threshold of materiality. I have reached that view because the submission, with which the Tribunal failed to appreciate or deal, went to the fundamental question of the risk that the applicant would not manage his condition and integrate into the community, so that there was a risk that he would reoffend, and thus pose a danger to the community. If the Tribunal had appreciated the true relevance of the submission, that may have cast a different complexion on the entire review, which might have led to a different result. For example, it might have led to a line of questioning from the Tribunal at the hearing that changed the Tribunal's assessment of the overall evidence when it retired to consider its reasons. I do not need to find that this was likely; it is enough that, in my view, understanding and considering the submission could realistically have resulted in the Tribunal making a different decision: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 at [33].

48    I therefore uphold ground 6.

49    I now turn to consider the other grounds of review. The first ground involves an argument about the proper construction of s 36(1C) which needs to be addressed in some detail. The other grounds are in substance attempts to present merits review as if it were review for jurisdictional error, and I will deal with those more briefly.

Ground 1 - 'wrong legal test'

50    Ground of review 1 is as follows:

The Tribunal committed jurisdictional error by applying the wrong legal test to the interpretation of section 36(1C)(b) of the Migration Act 1958 (Cth). The Tribunal applied WKCG v Minister for Immigration and Citizenship [2009] AATA 512 and SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 whereas the appropriate test must commence with section 15AA of the Acts Interpretation Act 1901 and Mills v Meeking (1990) 169 CLR 214, 235. This is particularly so when determining what constitutes a danger and the threshold risk required to establish that a 'danger' exists.

51    It is difficult to see what error is alleged in this ground. It does not say why it was wrong for the Tribunal to apply WKCG and SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174, nor does it say how commencing with s 15AA of the Acts Interpretation Act 1901 (Cth) or Mills v Meeking (1990) 169 CLR 214 at 235 would have yielded a different test, or what that test would have been. Section 15AA provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred, and the passage from Mills v Meeking that is cited is an application of a similar provision found in state interpretation legislation.

52    The ground refers to the question of determining what constitutes a 'danger' under s 36(1C)(b), and the threshold risk required to establish that. That appears to be a reference to submissions, made to the Tribunal on the applicant's behalf, that the test in s 36(1C)(b) should be given a very narrow application, in a way that articulates a very high threshold in order to find someone is a danger to the Australian community.

53    However in WKCG at [31], Deputy President Tamberlin enunciated the test as follows (first emphasis added):

The language of the Article directs attention to the expression 'danger'. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar [Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98] at 100) it involves an assessment of the applicant's level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression 'danger' involves a lesser degree of satisfaction than that required by the expression 'probable.'

54    In written submissions filed in the Tribunal proceedings, the applicant relied on the passage I have emphasised in the quote, so it is difficult to see how he can now assert that the Tribunal committed a jurisdictional error in following that test.

55    In the same submissions, the applicant's then solicitor also developed an argument along the following lines:

(1)    When s 36(1C) was inserted into the Act, s 501(6)(a) already permitted the Minister to refuse to grant a visa to a person if the person did not satisfy the Minister that the person passed the character test. A person did not pass the character test if (among other reasons) there was a risk that the person would represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way: s 501(6)(d)(v).

(2)    Therefore Parliament could not have intended for s 36(1C) to simply replicate s 501.

(3)    Since s 36(1C) applies to protection visas, which are granted to those who face serious or significant danger in their country of origin, the standard in s 36(1C) must be stricter or higher to match the seriousness of Australia's protection obligations.

(4)    The difference between the two sections (s 36(1C) and s 501(6)(a)) gives rise to an ambiguity so that resort may be had to the international agreement which s 36 purports to implement in order to help resolve the ambiguity.

(5)    The Explanatory Memorandum to the legislation which introduced s 36(1C), the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth) indicates that the Government intended to codify Article 33(2), which concerns refoulement, so that refoulement is a relevant consideration.

(6)    A note on refoulement published by the United Nations High Commissioner for Refugees (UNHCR Note on the Principle of Non-Refoulement) indicates that there should be a careful examination of proportionality between the danger to the community or the gravity of the applicant's crimes, and the persecution that he fears, and that the exception to the principle of non-refoulement provided by Art 33(2) should be applied with the greatest caution.

(7)    Therefore the danger referred to in s 36(1C) must be construed to mean a very serious danger.

56    For several reasons, I do not accept this line of argument.

57    First, there is no ambiguity in s 36(1C) which requires resort to extrinsic materials. I agree with Deputy President Tamberlin where, in WKCG at [25], he observed that the words used in Art 33(2) are 'plain and simple English'. By extension, so are the words of s 36(1C)(b). And the section does not say 'very serious danger'. It just says 'danger'.

58    Second, the difference in wording between s 36(1C) and s 501(6)(d)(v) does not result in any ambiguity in either provision. They are dealing with different matters. Section 36(1C) requires the Minister to form a subjective view about the relevant criteria, and for that view to be formed on reasonable grounds. If those conditions are satisfied then by force of s 36(1A) the applicant is not eligible for a protection visa. But if a person does not pass the character test because of s 501(6)(d)(v), that relevantly activates a discretion in the Minister to refuse the grant of any type of visa. The differences in wording and coverage between the two provisions are thus readily explicable. No ambiguity requiring resort to the explanatory memorandum or international agreements arises.

59    Third, the passage in the explanatory memorandum on which the applicant relies relevantly reads as follows (at page 12):

The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa.

60    That needs to be understood in the context of what Art 33 says, namely:

(1)    No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2)    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

61    Article 33(2) is the exception to the non-refoulement principle for which the treaty provides, not the principle itself. In saying that decision makers should consider 'this concept', the explanatory memorandum indicates that it is the exception and the scope of the exception which needs to be considered. Consistently with that, the wording of s 36(1C) hews closely to that of Art 33(2). So even if the explanatory memorandum and by extension Art 33(2) could be considered in aid of the proper construction of s 36, it sheds no light on the criterion imposed by s 36(1C).

62    To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, 'danger' in s 36(1C) means 'present and serious risk' and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of 'very serious danger' urged on behalf of the applicant.

63    Fourth, the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.

64    I do not uphold ground 1.

Ground 2 - alleged irrationality regarding mental health treatment and lack of insight

65    Ground of review 2 is as follows:

The Tribunal committed jurisdictional error by reaching a decision that was irrational, illogical or manifestly unreasonable:

a.    in finding that the Applicant posed a danger to the community because he was not on a Community Treatment Order (CTO), the Tribunal failed to consider that the reason he was not on a CTO was because of the jurisdictional barrier created by his detention in a federally operated immigration detention centre (paragraphs 147, 148, 149, 156 and 179);

b.    in finding that the Applicant posed a danger to the community because he no longer had access to the Bentley Mental Health Service (paragraphs 148, 149 and 171), the Tribunal failed to consider that the reason [the] Applicant did not have access to the Bentley Mental Health Services was solely because of his detention at Yongah Hill and additionally that the Applicant would be back within the catchment area of the Bentley Mental Health Service upon his release as it was planned that he would reside with his friend in St James;

c.    in finding the Applicant lacked insight into his offending based on pre-sentencing reports (paragraph 48), the Tribunal failed to consider that these reports were prepared from interviews with the Applicant prior to him receiving psychiatric care for his then recently diagnosed schizophrenia and are therefore outdated; and

d.    failing to consider the breadth of support services that would be available to the Applicant upon his release that are not currently available to him in immigration detention, as outlined in his Submissions in Reply dated 20 April 2018.

66    I do not consider that the findings asserted in grounds 2(a) and 2(b) fairly represent the totality of the Tribunal's reasons. The Tribunal was aware of the reasons why the applicant's CTO had been cancelled and why he no longer had access to the Bentley Mental Health Service: see the Tribunal's reasons at paragraphs 47 and 171. The finding made at paragraph 147 of the Tribunal's reasons was that 'the Applicant is no longer on a CTO, [and] that there is no indication that he would be in the future and … no submissions regarding alternative "safety nets" have been made' (emphasis added).

67    When its reasons are considered in context, it is apparent that the Tribunal considered that, whatever the reasons for the applicant's lack of access to a CTO or the Bentley Mental Health Service while in detention, there was insufficient evidence that he was going to receive adequate mental health treatment and monitoring if he was released: see paragraphs 148 and 149.

68    There is nothing illogical, irrational or unreasonable about these findings. There was a logical connection between them and the evidence to which the Tribunal referred. The conditions for jurisdictional error of the kind asserted by the applicant in grounds 2(a) and 2(b) have not been satisfied: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135].

69    As for ground of review 2(c), the Tribunal did not make any finding at paragraph 48 of its reasons that the applicant lacked insight into his offending. The Tribunal was at that point quoting from submissions made by the Minister which summarised evidence. At paragraph 143 the Tribunal expressly disagreed with the applicant that the Minister had asserted that a pre-sentence report from 2014 was evidence of a current lack of insight into the applicant's mental health. The Tribunal simply did not make the finding about a lack of insight into the applicant's offending that is asserted at ground 2(c).

70    It is also incorrect to assert, as ground 2(d) does, that the Tribunal failed to consider the breadth of support services that were referred to in the applicant's written reply submissions. At paragraph 172 the Tribunal expressly referred to the reply submissions on that specific subject. But it then went on to say that the extent to which those submissions could be taken into account was qualified by the evidence.

71    I do not uphold ground 2.

Ground 3 - alleged illogicality in findings about applicant's friend

72    Ground of review 3 is as follows:

The Tribunal committed jurisdictional error by reaching a decision that was illogical, irrational or manifestly unreasonable:

a.    when finding that the Applicant's friend, with whom it is proposed that he would live as part of his management plan, did not adduce evidence of the nature or extent of his training as a counsellor (paragraph 151) as this is not a criteria for successfully providing a safe and stable residence for the Applicant;

b.    when finding that the Applicant and his friend met in prison and raising concern that this fact was not addressed in either the Applicant or the Applicant friend's evidence or the Applicant's action plan (paragraph 152).

73    Once again, I consider that the applicant's grounds of review do not provide a fair representation of what the Tribunal found. Paragraph 151 of the Tribunal's reasons is as follows:

While the Applicant's friend seemed to be reasonably confident that he would be able to respond to the Applicant relapsing or becoming violent in an appropriate manner, the Tribunal is unconvinced of this, having no documented evidence of the nature and extent of the Applicant's friend's training as a counsellor. The Applicant's friend also gave evidence that he had no experience looking after someone with a mental illness in Australia, but that he would be able to appropriately manage this situation, should it occur.

74    The import of the Tribunal's finding was that, in view of the friend's lack of training as a counsellor, it was unconvinced that he would be able to respond appropriately if the applicant suffered from a relapse of his mental illness or became violent. There is nothing illogical, irrational or unreasonable about that, especially in light of the evidence that the friend had no experience in looking after someone with a mental illness. The Tribunal did not elevate the friend's lack of training into a rigid criterion, as ground 3(a) implies.

75    Similarly, ground 3(b) does not accurately state the findings that the Tribunal made. Paragraph 152 of the reasons is, relevantly:

The Applicant and the Applicant's friend shared a prison cell for a time following the Applicant's friend's fraud conviction in 2013 and this is where the Applicant's friend says he came to know the Applicant 'very well.' The Applicant has remained in prison or detention since this time, whereas the Applicant's friend has returned to the community, met his partner, had two children and started his own business. The Tribunal is of the view that the contact between the Applicant and the Applicant's friend in the community has been limited and was a number of years ago. The Tribunal is concerned that this was not addressed in the Applicant's evidence or that of the Applicant's friend, or in the reintegration plan.

76    So, the Tribunal was not concerned about the fact that the applicant and his friend met in prison. It was concerned that since the friend left prison, he and the applicant had only had limited contact in the community, and that was a number of years ago. The reference to the applicant's and his friend's imprisonment was made in order to make the point that the friend was released from prison, while the applicant remained in prison or detention, so that their contact had been limited. The concern expressed by the Tribunal was that the limited nature of the contact was not addressed in the applicant's evidence or in his reintegration plan. That concern was not illogical, irrational or manifestly unreasonable.

77    I do not uphold ground 3.

Ground 4 - procedural fairness and failure to make inquiries on critical facts

78    Ground of review 4 is as follows:

The Tribunal denied the Applicant procedural fairness. Alternatively, or in addition, failed to make inquiries on critical facts:

a.    by failing to seek additional evidence from the Applicant or the Applicant's friend's wife as to her thoughts regarding the plan for the Applicant to reside with her and her husband upon the Applicant's release from detention before drawing adverse inferences from the absence of this evidence (paragraph 150); and

b.    by failing to seek additional evidence from the Applicant or the Applicant's friend about the impact their different lives will have on their ability to reside together before drawing an adverse inference from this (paragraph 152).

79    At paragraph 149 the Tribunal found that the reintegration plan that had been submitted did not 'fully address or accommodate the complexity of the Applicant's medical and personal histories'. Then at paragraph 150 the Tribunal said:

For example, the Applicant submits he has the support of the Applicant's friend in respect of his proposed future living arrangements and employment prospects. The Tribunal heard oral evidence from the Applicant's friend in this regard, including his evidence that his wife was also supportive of this plan. However, the Tribunal did not hear from the Applicant's wife herself as to the following matters: how she felt about the Applicant living with her two young children; for how long she understood this arrangement to be in place; how the Applicant's living costs would be met and for how long; what she would do if the Applicant were to have an episode in her presence or in the presence of her children; and what she would do if this were to occur when her husband was not present.

80    The Tribunal did not expressly draw any adverse inference on the basis of the lack of evidence by the friend's wife. But it may be accepted that it considered that the lack of evidence from the friend's wife undermined, to some extent, the evidence of her husband. Even so, it does not follow that the Tribunal had an obligation to draw that view to the applicant's attention. The applicant was legally represented before the Tribunal and it must have been obvious to his lawyer that the absence of evidence from the friend's wife supporting the proposed living arrangements would potentially impact on the weight to be given to the friend's evidence. That the Tribunal referred to that lack of evidence should not have come as a surprise.

81    In any event, procedural fairness does not require a tribunal 'to expose his or her mental process or provisional views to comment before making the decision in question' (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592) or 'to give an applicant a running commentary upon what it thinks about the evidence that is given' (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]).

82    Nor was there any obligation on the Tribunal to make its own inquiries as to the views of the friend's wife. While it is not useful to speak in terms of onus of proof in the context of the Tribunal's process, it is for the applicant for a protection visa to establish the claims that are made: SZBEL at [40]. Generally, if there are people who might be able to give relevant evidence but are not called, there is no obligation on the Tribunal to seek further evidence from them: see Green v Minister for Immigration and Citizenship [2008] FCA 125; (2008) 100 ALD 346 at [40] (Tamberlin J).

83    In truth, what happened here was that the applicant's advisers had identified that the friend's wife's attitude was sufficiently relevant to lead them to adduce evidence of it, but because the evidence was not adduced directly from her, and did not descend to detail, the Tribunal placed little weight on it. No error is thus disclosed.

84    There is even less merit in ground of review 4(b). The finding to which it refers has been set out above. It was not a finding about 'the impact their [the applicant and his friend's] different lives will have on their ability to reside together', and no adverse inference about that matter was drawn. It was a finding, albeit implicit, that because the applicant and his friend had had limited contact in the community, the Tribunal could not be confident that they would live harmoniously together for any length of time.

85    I do not uphold ground 4.

Ground 5 - findings about detention environment and reintegration plan

86    Ground of review 5 is as follows:

The Tribunal committed jurisdictional error by making an illogical or unreasonable finding:

a.    about the impact of detention upon the Applicant's mental illness in failing to give due weight to the impact of the detention centre environment upon the Applicant's symptoms (paragraph 165) despite professional evidence in support of the Applicant's contention (paragraphs 48, 50, 55, 56) and despite no evidence to the contrary. Rather, the Tribunal points to the Applicant's offending before he was diagnosed with schizophrenia and commenced on treatment as evidence that the Applicant would likely face equivalent "triggers" in the community (paragraph 165);

b.    in finding the Applicant's reintegration and treatment plan to be inadequate (paragraph 156) by relying on reports from 2014 and 2015, (referring in particular to a lack of family and community support, and the need for the Applicant's mental health issues to be addressed in the community), when these reports are outdated and pre-dated substantial treatment of the Applicant's mental illness. The Tribunal failed to rely on contemporary evidence provided by the Applicant's psychiatrist (paragraphs 50 to 69), and on evidence from the Applicant and the Applicant's friend as to the supports that are actually available. Furthermore, the Tribunal, having found the absence of a CTO and Bentley Health Services as being evidence of no improvement in the Applicant's circumstances (paragraph 156), failed to acknowledge that the reason why these could not be available to the Applicant at present was his detention at Yongah Hill, and that upon his release he would be able to re-avail himself of these supports and treatments.

87    Regarding ground 5(a), paragraph 165 of the Tribunal's reasons is as follows:

The Applicant has submitted on numerous occasions that it is the triggering detention environment (refer to a summary at paragraphs 168 and 169 below) that interferes with his ability to manage with his mental health and that to extrapolate his behaviour and experiences in detention to predict his behaviour in the community is not logical. In turn, the Applicant appears to be asking the Tribunal to accept what can only be a similarly illogical argument. That is, the Applicant is asking the Tribunal to be confident that, if released, the Applicant would then be compliant with his treatment plan, having never lived and worked in the open community in Australia following his diagnosis in 2014 (the Applicant was in remand since December 2013), therefore there being no evidence of the Applicant having complied with an appropriate treatment plan in the open community and irrespective of the evidence of the Applicant's non-compliance with his medication at various times since 2015. While the Tribunal generally accepts the detention environment may, to some extent, serve as a trigger of the Applicant's symptoms of schizophrenia it cannot accept that this would be the only trigger, and even if the Applicant were removed from the detention environment, that he would not face other "triggers" in the community. The Tribunal holds this view in light of the fact that the Applicant's offending history commenced well prior to his diagnosis of schizophrenia, prior to his being imprisoned and then detained, and on a previous history of substance abuse issues and violence that appear largely unresolved.

88    There is nothing illogical or unreasonable about these findings. The Tribunal observes that if it is illogical to say that the applicant's difficulties with managing his condition in detention indicate that he will experience such difficulties in the community, it is equally illogical to say that his behaviour and experiences in detention predict that he will comply with a treatment plan if he is released into the community. The point is simply that the applicant has no record of compliance with a treatment plan, and no record of life in the community after the diagnosis of paranoid schizophrenia.

89    It was open to the Tribunal, in the light of evidence as to psychiatric assessments of the applicant, and the other evidence of his history in the community and in detention, to accept that the detention environment may trigger the applicant's symptoms, while at the same time finding that there could be other triggers in the community. Ground 5(a) is an impermissible attempt at merits review of the Tribunal's factual findings.

90    Ground 5(b) challenges paragraph 156 of the Tribunal's reasons, which is as follows:

The Tribunal's emphasis and concern in relation to the Applicant's treatment (and reintegration) plan stems from the evidence linking these matters to the risk of the Applicant re-offending. In particular, the Tribunal notes:

(a)    the pre-sentence report dated 17 September 2014 (extracted at paragraph 48 above) refers to the Applicant's limited family and community support at that time;

(b)    the Court psychiatrist report dated 28 October 2014 (extracted at paragraph 48 above), which reported that the Applicant's mental health issues need to be addressed in the community to reduce his risk of reoffending and in turn his risk of future violence and that there were no new protective factors in place; and

(c)    the parole assessment dated around 30 January 2015 also identified the Applicant's failure to take his medication as a risk factor (for the Applicant reoffending).

In light of the Tribunal's views regarding the arrangements proposed in the Applicant's reintegration plan (refer to paragraphs 145 to 156 above), particularly now that the CTO and the Bentley Mental Health Service are no longer available to him, it considers there have been no significant positive changes in these areas since this time.

91    That the Tribunal was concerned with, and placed emphasis on, the applicant's treatment and reintegration plan can hardly be criticised. On any view, those matters were central to any assessment of the risk that the applicant would reoffend if released into the community.

92    The Tribunal appreciated that the pre-sentence report, psychiatrist report and parole assessment to which it referred predated treatment of the applicant's mental illness. It simply found that despite that, there had been no significant positive changes since that time.

93    The Tribunal did not fail to rely on the evidence of the psychiatrist, the applicant and his friend. It decided not to place great weight on that evidence. It articulated its reasons for doing so fully. Some of them are canvassed above. It was not illogical or unreasonable for the Tribunal to reach that view of the evidence.

94    Ground 5(b) seeks to impermissibly challenge the merits of the conclusion that the Tribunal reached after making that evaluation. It was plainly open to the Tribunal to find that, despite what the applicant put to it, the risk his release would pose was unacceptable.

95    I do not uphold ground 5.

Conclusion

96    Ground 6 is upheld and the application for judicial review is allowed. Orders will be made to set aside the decision of the Tribunal and to order the review of the delegate's decision by a differently constituted Tribunal.

Associate:

Dated:    1 October 2019