FEDERAL COURT OF AUSTRALIA

Leone v Minister for Home Affairs [2019] FCA 1610

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made under s 500(1)(ba) of the Act on 10 September 2018.

2    The applicant, Frank Leone, was born in Calabria, Italy on 24 October 1960. He migrated to Australia with his family when he was 12 years old, arriving in Melbourne on 8 January 1973. He has lived in Australia continuously since that time and has not returned to Italy. Despite that, Mr Leone does not hold Australian citizenship and has remained in Australia on a permanent resident visa. He has a large family in Australia, including his mother (his father is deceased), both of his siblings, all of his five daughters (the youngest is aged 11), his three grandchildren and his long-term de facto partner.

3    On 13 May 2018, Mr Leone’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s 501(3A)(b) of the Act as a result of his conviction in 2011 for three counts of trafficking heroin, cocaine and amphetamines in commercial quantities. He was sentenced to 6 years and 3 months’ imprisonment with a minimum parole period of 4 years and 6 months. He was ineligible for parole as his visa was cancelled. Since the end of his sentence, he has been in immigration detention.

4    On 18 June 2018, a delegate of the Minister for Home Affairs decided not to revoke the mandatory cancellation of Mr Leone’s visa pursuant to s 501CA(4) of the Act.

5    On 10 September 2018, the Tribunal affirmed the delegate’s decision.

6    By originating application filed on 12 October 2018 and amended on 16 May 2019, Mr Leone seeks judicial review of the Tribunal’s decision. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the Tribunal’s decision in the present matter and s 476A(2) stipulates that the Court’s jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. As such, review by the Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. By his application, Mr Leone seeks an order of certiorari quashing the decision of the Tribunal and mandamus requiring the Tribunal to determine Mr Leone’s application according to law. I note in passing that the applicant’s written submissions described the application as an appeal from the decision of the Tribunal, presumably under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That was an error, but not one of any moment. By virtue of s 43C of the AAT Act, an appeal does not lie to the Court from a decision of the Tribunal under s 500(1)(ba) of the Act: see for example Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [4]. Correctly, the application that was filed by the applicant was an application for review of the Tribunal’s decision under s 476A of the Act. The arguments advanced in the applicant’s written submissions were equally available on an application for judicial review.

7    This is a hard case. It concerns a man in his late fifties who has lived continuously in Australia since 1973 when he was 12 years old. However, as a consequence of his criminal offending, particularly the most recent offences involving the trafficking of heroin, cocaine and amphetamines in commercial quantities, his permanent resident visa has been cancelled and he faces deportation to Italy. The task of the Court on this application is not to decide whether there is a reason to revoke the mandatory cancellation of Mr Leone’s visa under the Act. That task can only be performed by the Minister and by the Tribunal on review of the Minister’s decision. The task of the Court is to determine whether the Tribunal’s decision is affected by jurisdictional error.

8    Given the personal cost to Mr Leone and his family of a decision not to revoke the cancellation of his visa, unsurprisingly there was a large body of evidence before the Tribunal running to many hundreds of pages. The hearing was conducted on 31 August 2018 and 3 September 2018. The period of 84 days stipulated in s 500(6L) of the Act for the Tribunal to make a decision (failing which, the Tribunal is deemed to have affirmed the decision under review) expired on 11 September 2018. The Tribunal member delivered his reasons on 10 September 2018.

9    By his grounds of review, Mr Leone contends that the Tribunal did not, or did not adequately, address submissions and evidence advanced on his behalf before the Tribunal. In assessing such grounds of review, the Court must avoid the danger of straying into merits review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37 per Brennan J. It is also necessary to keep in mind that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications and, as such, reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46]-[47] referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is also necessary to read the Tribunal’s reasons in light of the whole case as it was before the Tribunal, so that the materiality of the issue about which complaint is made can be assessed in the context in which the matter was conducted in the Tribunal: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ.

10    While avoiding the danger of straying into merits review, I am acutely conscious of the subject matter of the decision under review and the consequences of jurisdictional error being made. I gratefully adopt the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

11    The consequences of the decision under review have caused me to reflect carefully on the submissions advanced on behalf of each of Mr Leone and the Minister. In the end, for the reasons that follow, I cannot uphold any of Mr Leone’s grounds of review.

Background

12    The decision of the Tribunal records the following background facts concerning Mr Leone:

[7] The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls.

[8] In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant.

[9] In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a daughter together, Alexia.

[10] In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related.

[11] In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000.

[12] On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.

13    Mr Leone was given two warnings that his criminal offending might lead to the cancellation of his visa. On 3 October 2002, the Department issued a Notice of Intention to Consider Cancellation (NOICC) to Mr Leone. Following his subsequent conviction for the possession of cannabis in 2005, the Department issued a further NOICC to Mr Leone on 20 July 2006. At the time, Mr Leone had three minor children and provided evidence to the effect that he had good prospects of rehabilitation. The Department decided not to cancel Mr Leone’s visa, but issued him with a warning as to future conduct. On 24 January 2007, Mr Leone signed an acknowledgement that he was aware that the Department may give further consideration to the cancellation or refusal of any visa granted to him if further information of relevance came to the attention of the Department in the future. As noted above, Mr Leone was subsequently convicted in 2011 on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities.

Legislative Provisions

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

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

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

. . .; and

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

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

16    Section 501CA of the Act relevantly provides that:

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

…

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

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

(b)    the Minister is satisfied:

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

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

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

18    Paragraph 6.3 of Direction 65 provides as follows:

6.3    Principles

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

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

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

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

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

. . .

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

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

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

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

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

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

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

(c)    expectations of the Australian community.

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

13.1    Protection of the Australian community

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

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

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

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

. . .

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

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

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

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

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

24    Paragraph 13.2 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(b), provides as follows:

13.2 Best interests of minor children in Australia affected by the decision

(1)     Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

(2)     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3)     If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)     In considering the best interests of the child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

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

13.3 Expectations of the Australian Community

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

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

The Tribunal Decision

27    As noted above, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr Leone’s visa.

28    As both parties agreed that Mr Leone did not pass the character test for the purposes of s 501(6) of the Act (by virtue of his having a “substantial criminal record”), the sole issue before the Tribunal was whether there was “another reason” to revoke the visa cancellation, with reference to the primary and other considerations identified in Direction 65.

29    In respect of the first primary consideration under Direction 65, protection of the Australian community from criminal or other serious conduct, the Tribunal concluded (on the issue of the nature and seriousness of the conduct to date) that:

[37] Having regard to the factors set out at paragraph 13.1.1 of Part C, I am satisfied that the Applicant’s conduct in trafficking drugs of dependence was, of its nature, a substantial threat to the welfare of individuals with whom he dealt and to the Australian community generally. This is particularly so for the offences for which he was convicted in 2011 which involved the trafficking of multiple drugs on a commercial scale. The sentences handed down by the court attest to the seriousness of the offences.

30    In respect of the risk to the Australian community should the non-citizen commit further offences, the Tribunal concluded, on the issue of the nature of the harm that would be caused:

[41] It is beyond dispute that drug trafficking is a serious social problem. It has a very significant detrimental effect on the Australian community. It directly causes serious harm to individual drug users and indirectly results in social problems for the whole community. Should the Applicant engage in further criminal conduct, and particularly the trafficking of drugs of dependence, he will visit these harmful effects on the Australian community.

31    On the issue of the likelihood of re-offending, the Tribunal concluded:

[61] Taking account of all the evidence, I am satisfied that there is a significant risk that the Applicant will re-offend if the cancellation of his visa is revoked.

[62] Having regard to this risk and the nature of the harm that would result from the Applicant reoffending I find that the primary consideration of protecting the Australian community weighs strongly in favour of refusing to revoke the cancellation of the Applicant’s visa.

32    In respect of the second primary consideration under Direction 65, the best interests of minor children in Australia, the Tribunal concluded in respect of Mr Leone’s daughter Alexia and his three grandchildren:

[70] Taking all of these matters into account, I am satisfied that it would be in Alexia’s best interests for the Applicant’s visa cancellation to be revoked. While there would be opportunities for ongoing contact with the Applicant if he were deported to Italy and while Alexia would have strong support from her family and access to counselling by Ms Kay, I am satisfied that the impact on Alexia would be significant at this stage of her life. I accord this factor significant weight.

[71] As to the Applicant’s three grandchildren, they were all born while the Applicant was in prison and so have no direct involvement with him. They are also young and have the support of their parents. It would no doubt be to the advantage of the grandchildren to have direct contact with their grandfather but I am not satisfied that the interests of the three grandchildren should be accorded significant weight.

33    In respect of the third primary consideration under Direction 65, the expectations of the Australian community, the Tribunal concluded:

[80] Having regard to these matters, I am satisfied that because of the nature and extent of the Applicant’s offending, the Australian community would expect that the cancellation of his visa should not be revoked. I find that this consideration weighs heavily in favour of not revoking the cancellation.

34    The Tribunal accepted that the “other considerations” relating to the strength, nature and duration of Mr Leone’s ties to Australia and the impact on family members if the cancellation decision was not revoked, weighed (moderately) in his favour: at [81]-[86]. However, the Tribunal found that the countervailing considerations did not overcome the need for protection of, and expectations of the Australian community. The Tribunal concluded that:

[88] Weighing each of the factors for and against revoking the cancellation, I am satisfied that the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh any other considerations and favour the exercise of the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa.

Grounds of Review

35    The grounds of review advanced on behalf of Mr Leone in the amended originating application, in written submissions prior to the hearing and in oral submissions at the hearing were formulated in different terms. As noted below, one of the grounds advanced in written and oral submissions did not appear to be within the grounds stated in the amended originating application, but no objection was taken to the Court considering the additional ground. In the circumstances, the most convenient course is to address the grounds of review in the order in which they were advanced in the applicant’s written submissions, while taking into account the oral submissions that were made.

Ground One

36    By ground one, Mr Leone contends that the Tribunal erred because there was a qualitative failure of substance to engage with or take into account mandatory considerations, relying on Navoto v Minister for Home Affairs [2019] FCA 295 at [57]. Mr Leone contends that the Tribunal failed to take into account three matters.

Financial or material impact on daughter

37    First, Mr Leone contends that the Tribunal failed to take account of the financial or material impact on his daughter Alexia if he was deported, arguing that the Tribunal took into account the emotional impact but not the financial impact. This first contention was not raised in the amended originating application. Nevertheless, it was addressed by the Minister.

38    Consistently with paragraph 13.2 of Part C of Direction 65, the Tribunal gave consideration to the best interests of Mr Leone’s minor children. The Tribunal’s findings were as follows:

[66] I am required by paragraph 13.2(3) of the Direction to give individual consideration to the best interests of each child “to the extent that their interests differ”, in having regard to the factors set out in paragraph 13.2(4).

[67] The Applicant called evidence from Ms Angela Kay, a psychologist with extensive experience working with children. Ms Kay provided a written report19 and gave evidence at the hearing. She has had an involvement with the Leone family for over two years, having supported Ms Galileos in parenting Alexia’s older sister, Sara, and Alexia. Ms Kay opined that Alexia is relatively immature for her age and at a vulnerable time in her life as she is about to enter adolescence and start secondary school. She diagnosed Alexia as suffering separation anxiety disorder and generalised anxiety disorder as a result of her separation from her father. Ms Kay added that while Alexia has had frequent telephone contact with the Applicant while he has been in prison and detention, she would benefit from direct inter-personal contact. She further opined that should the Applicant be deported to Italy, it would have a dramatic adverse effect on Alexia.

[68] In considering the best interests of Alexia, I have had regard to the considerations set out in paragraph 13.2(4) of Part C. I am satisfied that there is a strong father-daughter bond between the Applicant and Alexia, but I note that there has been a long period of absence. Alexia has been apart from her father for the last seven years. During that time, their contact has been confined to regular telephone discussions and occasional visits, which have become less frequent since the Applicant has gone into detention. In reality, the main burden of parenting has fallen on Alexia’s mother who, according to Ms Kay, has done an excellent job of raising Alexia essentially as a single parent. This means that the Applicant has had a limited ability to play a parenting role to date, but he would have an opportunity to play a positive parenting role in the future as Alexia progresses through adolescence.

[69] It appears that the Applicant’s prior offending has not had a significant impact on Alexia. She was only an infant at the time of the offences in 2009. However, if the Applicant were to re-offend or relapse into drug use in the future it would be very likely to negatively impact Alexia, now that she is older. While Alexia has become accustomed to being separated from her father, I am satisfied that this is tempered by her expectation that they will eventually be reunited. I accept Ms Kay’s assessment that it will have a significant effect on Alexia if the Applicant is deported. The absence of the Applicant from Alexia’s life is to some extent compensated by the close support of her mother and older sister, Sara, as well as members of her extended family. There is no evidence that Alexia has suffered or experienced any abuse or neglect or suffered any trauma as a result of the Applicant’s conduct.

[70] Taking all of these matters into account, I am satisfied that it would be in Alexia’s best interests for the Applicant’s visa cancellation to be revoked. While there would be opportunities for ongoing contact with the Applicant if he were deported to Italy and while Alexia would have strong support from her family and access to counselling by Ms Kay, I am satisfied that the impact on Alexia would be significant at this stage of her life. I accord this factor significant weight.

[71] As to the Applicant’s three grandchildren, they were all born while the Applicant was in prison and so have no direct involvement with him. They are also young and have the support of their parents. It would no doubt be to the advantage of the grandchildren to have direct contact with their grandfather but I am not satisfied that the interests of the three grandchildren should be accorded significant weight.

39    Mr Leone submitted that he had argued before the Tribunal that it was in the best interests of his 11-year-old daughter that cancellation be revoked, including because, if he has to live in Italy, Alexia will be devastated and disadvantaged materially, and that he would be far better able to support his children financially, particularly Alexia, if he stayed in Australia, rather than being exiled to Italy. Mr Leone submitted that the Tribunal accepted that he had employment prospects in Australia and that the Tribunal heard evidence from Ms Galileos about the family’s difficult financial position and how she needed Mr Leone’s help in that regard.

40    I accept that Mr Leone argued before the Tribunal that Alexia would be “devastated and disadvantaged, materially and emotionally” if Mr Leone were deported. Mr Leone’s brother John gave evidence that he was able to help Mr Leone with employment opportunities including finding employment in the bus company where John worked. Mr Leone’s partner and Alexia’s mother, Ms Galileos, gave evidence that:

If Frank is able to stay here, he will help support us financially. I find it difficult to make ends meet. It would be so much better for Alexia and Sara if they had both Frank and me present in their lives and supporting them financially, practically and emotionally.

41    Counsel for Mr Leone also referred me to parts of the transcript of the oral evidence before the Tribunal which was to similar effect.

42    The Minister submitted that the Tribunal was not obliged to consider, or to make findings, with respect to every contention of fact raised by Mr Leone, relying on Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (Buadromo) at [46]. It was submitted that the substantive submission advanced by Mr Leone concerning his daughter, Alexia, was that it would be in her best interests if he was allowed to remain in Australia. The Tribunal found that it would be in Alexia’s best interests for the visa cancellation to be revoked, and gave that factor significant weight at [70]. The Minister also submitted in the alternative that any failure of the Tribunal to consider the financial consequences to Alexia of her father’s deportation was not material to the Tribunal’s decision as any failure to take it into account could not have materially affected the adverse decision that was made. This was because the Tribunal had determined that it would be in Alexia’s best interests for Mr Leone’s visa cancellation to be revoked and gave that consideration significant weight.

43    In my view, the Minister is correct that the Tribunal’s overall finding concerning Mr Leone’s daughter, Alexia, subsumed the subsidiary matter concerning financial impact. I also accept the Minister’s alternative submission that any failure of the Tribunal to consider the financial consequences to Alexia of her father’s deportation was not material to the Tribunal’s decision (in the sense explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123).

44    The relevant legal principles were not in dispute. In Applicant WAEE, the Full Court of this Court stated (at [46]-[47]) that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. The Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications and its reasons are not to be scrutinised “with an eye keenly attuned to error”. The Full Court observed (at [47]):

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

45    Those principles were re-affirmed by the Full Court in Buadromo at [46]-[49] and in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Maioha) at [41]-[45].

46    In relation to Alexia, the primary evidence and submissions advanced before the Tribunal on the issue of the best interests of children concerned the emotional impact on Mr Leone’s daughter, Alexia, of Mr Leone’s deportation. The Tribunal accepted the evidence of a psychologist, Angela Kay, that Mr Leone’s deportation to Italy would have a dramatic adverse effect on Alexia. In contrast, the evidence and submissions advanced before the Tribunal concerning the financial impact on Alexia of Mr Leone’s deportation, summarised above, was at a high level of generality. The Tribunal was satisfied that it would be in Alexia’s best interests for Mr Leone’s visa cancellation to be revoked and accorded that factor significant weight. While the reasoning of the Tribunal shows a considerable focus on the likely emotional impact on Alexia if her father were deported, the Tribunal’s overall findings are stated broadly. Given the finding that it would be in Alexia’s best interests for Mr Leone’s visa cancellation to be revoked, a further finding specifically directed at the submission that Alexia would be materially or financially prejudiced by her father’s deportation was unnecessary. The Tribunal’s finding subsumed all matters that had been identified as supporting such a finding.

47    For similar reasons, I do not accept that any failure of the Tribunal to consider the financial consequences to Alexia of her father’s deportation was material to the Tribunal’s decision in the sense of depriving Mr Leone of the possibility of a successful outcome. The primary evidence adduced before the Tribunal concerned Alexia’s emotional well-being. The Tribunal found that it would be in Alexia’s best interests for Mr Leone’s visa cancellation to be revoked and accorded that factor significant weight. In my view, the generalised evidence that, in the future, Mr Leone would be in a position to assist Alexia financially could not realistically have affected the Tribunal’s overall assessment of this consideration, in circumstances where the Tribunal had already given the consideration significant weight.

Impact on Mr Leone’s mother

48    Second, Mr Leone contends that the Tribunal failed to take account of the impact of his deportation on his elderly mother.

49    Consistently with paragraph 14(1) of Part C of Direction 65, the Tribunal gave consideration to a range of “other considerations” including the strength, nature and duration of ties with Australia and impact on family members. The Tribunal gave “some moderate weight” to the former consideration, finding that:

[83] The Applicant has a deep family connection with Australia. He has lived here since 1973, all of his adult life. He has immediate family and an extended family in Australia. He has very limited ties to Italy.

50    The Tribunal gave “some weight” to the latter consideration, impact on family members, finding that:

[86] The interests of family are not a primary consideration under the Direction, but I accept that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for the Applicant’s partner, his adult children, his aged mother and other members of his family. I give this consideration some weight.

51    Mr Leone submitted that he had argued before the Tribunal that his mother was elderly, frail and ill and that, if he were removed to Italy, his mother would never be able to see him again. He submitted that this consideration was relevant to his ties to Australia and also to the extent of impediments he would face if removed in that not being able to see one’s mother is an impediment to establishing oneself in another country. Mr Leone argued that the Tribunal’s engagement with this consideration was inadequate.

52    The Minister submitted that the Tribunal took that consideration into account at paragraph 86 of its reasons and there was no jurisdictional error.

53    In my view, the Minister is correct that there is no jurisdictional error in this aspect of the Tribunal’s decision. The Tribunal plainly had regard to the impact of Mr Leone’s removal on his mother and acknowledged that she was elderly. As stated by the Tribunal, the impact on family members is a secondary consideration. While the Tribunal did not advert specifically to his mother’s illness and incapacity to travel, I do not infer that the Tribunal overlooked those matters. Rather, the Tribunal summarised its principal findings and noted that it gave this consideration some weight. I also consider that this consideration is closely connected with the subject of strength, nature and duration of ties with Australia, which the Tribunal gave some considerable weight to. Conversely, I do not think this consideration needs to be considered under the subject of the extent of impediments if removed.

Expert psychological evidence

54    Third, Mr Leone contends that the Tribunal failed to engage with the expert psychological evidence of Ms Matthews.

55    The Tribunal considered Ms Matthews’ evidence at some length and, on the subject of the likelihood of re-offending, made the following findings:

[42] The evidence shows that prior to his imprisonment in 2011, the Applicant had a well-established pattern of re-offending in relation to the possession and trafficking of drugs. The penalties imposed by the courts escalated with each trafficking offence, indicating that the court regarded his repeat offending as increasingly serious.

[43] The Applicant has invited the Tribunal to accept that he is a changed man who, if his visa is restored and he returns to the community, will no longer engage in criminal activity and in particular the drug-related activity which landed him in prison in 2011.

[44] The Applicant points to a number of factors which he argues indicate that he has changed and is not at risk of re-offending. Those factors are:

(a) his age (he is now 58 years old);

(b) his participation in rehabilitation programs while in prison;

(c) the deterrent effect of the long sentence he has endured;

(d) his clean record while in custody both in prison and detention;

(e) the support of his family and especially his partner;

(f) his desire to be a good father and grandfather; and

(g) his remorse.

[45] Ms Matthews gave expert evidence as to the effect of the Applicant’s age and the effect of his long sentence on the risk of him re-offending. She opined that short sentences around 6 months have little deterrent effect, but for sentences of 3 - 5 years the recidivist rate falls from 37.1% to around 12%. She attributed this to two principal factors: firstly the deterrent effect of a long sentence; and secondly the availability of rehabilitation opportunities for longer serving prisoners. She gave evidence that re-offending for men declines markedly after the age of 50 due primarily to the lowering of their testosterone levels.

[46] Ms Matthews also pointed to other factors to support her opinion that the Applicant was at low risk of re-offending. She referred to the Applicant’s participation in rehabilitation programs in prison and especially in relation to drugs and gambling. She placed reliance on the Applicant having been drug-free while in custody.

[47] Ms Matthews also echoed the views of the other witnesses that the Applicant’s ties to his family, his relationship with his partner, and particularly his relationship with his daughter Alexia and her older sisters were all positive factors in making it unlikely that he will re-offend. The Applicant stressed these factors and particularly his desire to fulfil his role as a father and grandfather to explain why he would not re-offend. The Applicant also stressed his participation in drug and gambling rehabilitation programs and the fact that he has been drug-free for six to seven years, a claim he said was supported by urine testing in prison.

[48] I have given careful consideration to the matters raised by the Applicant and the witnesses called on his behalf.

[49] I accept that the Applicant is a caring father to his daughters and, within the limitations imposed on him by his incarceration, a supportive partner to Ms Galileos. Notwithstanding his criminal conduct, I am satisfied that the Applicant cares about his family and I believe him when he says that he wishes to fulfil his role as a father and grandfather and as a supportive son to his aged mother. However, the evidence clearly shows that this was the case before his imprisonment in 2011.

[50] These matters were raised by his sentencing judge in 2002. At the time of his offending in 2009, which resulted in his imprisonment in 2011, his family responsibilities were arguably greater than they are now. In 2009 his youngest daughter was an infant and his four older daughters were between 11 and 17 years old; yet his concern for his family did not deter him from engaging in the extensive criminal activity described by the sentencing judge in 2011, and involving his partner in his offending to the point where she was convicted as a co-offender and sentenced to 20 months imprisonment.

[51] I do not accept the Applicant’s submission that his role in his family or the support he enjoys as a member of his extended family are factors which diminish the risk that he will re-offend.

[52] I accept the Applicant’s evidence that he has been drug-free during the entire time that he has been incarcerated and that he has engaged in rehabilitation programs for drugs and gambling. I do not give any significant weight to these factors because I am not satisfied on the evidence that the Applicant’s drug-taking and gambling played a significant part in his offending in 2009.

[53] The evidence regarding the extent of the Applicant’s drug-taking prior to 2011 is unclear. He reported to Ms Matthews being drug-free for several years in the 1990’s. Bernard Healy, the clinical psychologist upon whom the Applicant relied in his submissions to the Department in response to the NOICC in 2006, reported that the Applicant had not used illicit drugs in the last 10 years. There are no admissions in the statutory declarations sworn by the Applicant in 2006 that he had a drug addiction or that it was a causative factor in his offending. In any event, the Applicant’s offences in 2009 were related to a lucrative commercial drug selling undertaking. The sentencing judge in 2011 calculated that the Applicant had grossed $364,000 from the sale of drugs in the period from 31 January 2009 to 31 July 2009. This was clearly not a situation of a drug-addicted person engaging in trafficking to support their habit.

[54] The only evidence that the Applicant had a substantial gambling problem at the time of his 2009 offences is a brief statement in a report prepared by Mr Ian Joplin, a forensic psychologist, in October 2016. Evidence was not led by the Applicant to explain how a gambling problem contributed to his offending. The Applicant makes no mention of it in his witness statement. The only reference to gambling in the material tendered by the Applicant in these proceedings is in Ms Matthews’ report at page 5 where she states:

Mr Leone further reports developing a gambling problem associated with cocaine use. “It was not to (sic) drastic, but it felt like an addiction”

[55] I do give some weight to the Applicant’s clean record in prison and detention and his participation in other rehabilitative programs, particularly the Peer Supporter program, but the Applicant has served time in prison previously and there is no evidence that he behaved any differently on those occasions.

[56] I accept the expert opinion of Ms Matthews regarding the statistical likelihood that the risk of reoffending declines with age, especially after 50, and after a lengthy sentence. I give this evidence limited weight as it is not correlated with the particular circumstances of the Applicant. I give less weight to the opinion of Ms Matthews regarding the Applicant’s actual circumstances. Her opinion was based on a single telephone interview and review of a limited number of documents. In giving her evidence, Ms Matthews was argumentative and defensive at times during cross-examination and did not present as an impartial witness.

56    In support of the submission that the Tribunal failed to engage with the evidence of Ms Matthews, Mr Leone made four criticisms of the Tribunal’s findings set out above. Each can be addressed shortly. None establish error on the part of the Tribunal.

57    First, Mr Leone submitted that the Tribunal did not refer to Ms Matthews’ evidence about the significance of his leadership role in a peer support program. The Tribunal stated that it had given careful consideration to the matters raised by Mr Leone and the witnesses who were called on his behalf (at [48]) and specifically referred to Ms Matthews’ evidence of Mr Leone’s participation in rehabilitation programs in prison (at [46] and [47]), and particularly the peer support program (at [55]). It was not necessary for the Tribunal to refer to every submission made by Mr Leone, but it was required to consider his submissions as a whole and to consider them as a matter of substance: see Maioha at [45]. In my view, the Tribunal’s reasons show that it was aware of and took into account Ms Matthews’ evidence about Mr Leone’s participation in a peer support program.

58    Second, Mr Leone submitted that the Tribunal failed to consider a critical part of Ms Matthews’ evidence that he had not served a long prison sentence prior to 2011 and so the sentence of 6 years and 3 months he received in December 2011 made a difference to his rehabilitation and risk of re-offending. In my view, it is clear from the Tribunal’s reasons set out above that it considered Ms Matthews’ evidence concerning the effect of a long prison sentence and Mr Leone’s age on the risk of re-offending, particularly at paragraphs 45 and 56 of its reasons. The fact that the Tribunal gave this evidence limited weight does not mean that the Tribunal failed to take it into account.

59    Third, Mr Leone submitted that the Tribunal found that Ms Matthews’ opinion about his age and length of prison sentence did not correlate with his circumstances, but did not explain why that was so (at [56]). In my view, no error is shown in this aspect of the Tribunal’s findings. The Tribunal’s reasons at paragraph 56 need to be read in context and as a whole. The Tribunal explained that it accepted the opinion of Ms Matthews regarding the statistical likelihood of re-offending having regard to age and length of sentence. However, the Tribunal was unwilling to give much weight to that statistical evidence on its own, divorced from the particular circumstances of Mr Leone (as the relevant offender). The Tribunal had addressed the particular circumstances of Mr Leone in the immediately preceding and following paragraphs (which are discussed further below). The Tribunal further explained that, in so far as Ms Matthews purported to base her opinion on the individual circumstances of Mr Leone, the Tribunal gave limited weight to her opinion because it was based on a single telephone interview with him and her review of a limited number of documents, and because Ms Matthews did not present as an impartial witness.

60    Fourth, Mr Leone submitted that the Tribunal found that Ms Matthews was argumentative and defensive in giving evidence and did not present as an impartial witness, and that that finding was not open on the evidence or should not have been made without reasons as to what the finding was based on. Mr Leone relied on the requirement imposed on the Tribunal by s 43 of the AAT Act to give reasons for the Tribunal’s decision. A substantial failure by the Tribunal to give reasons for its decision may constitute an error of law: Dornan v Riordan (1990) 24 FCR 564. It is not always the case, though, that a deficiency in reasons will constitute jurisdictional error: see for example Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [43]-[48]. In a given case, the failure to give adequate reasons may show a constructive failure to exercise jurisdiction by failing to conduct a review contemplated by the Act: cf Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [31].

61    In my view and for the following reasons, the Tribunal’s finding that Ms Matthews was argumentative and defensive in giving evidence and did not present as an impartial witness does not disclose jurisdictional error.

62    First, the obligation under s 43 of the AAT Act is to give reasons for the decision. That will usually require setting out the findings of fact that are made and the evidence on which they are based, together with an explication of the relevant legal principles and the result that follows from the application of the legal principles to the facts as found: cf Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at [40] per French J. However, the obligation under s 43 does not necessarily require the giving of reasons for the weighing of each piece of evidence. That would require a level of detail in reasons that is not practical and not necessary for an understanding of the basis of the decision.

63    Second, while it will usually be necessary for a decision maker to give reasons for an adverse credit finding (and such findings are amenable to judicial review), the assessment of an expert witness, and specifically the manner in which the expert expresses his or her opinions, is in a different category. That is not to suggest that the assessment of an expert witness is not amenable to judicial review on various bases including legal unreasonableness. But in my view, error is not disclosed simply by a decision maker forming the view that the expert gave evidence in an argumentative manner without providing reasons for that conclusion.

64    Third, I am not persuaded that the Tribunal’s findings about Ms Matthews’ presentation as an expert witness were not open to the Tribunal. The passages of Ms Matthews’ oral evidence to which I was taken, and my review of the whole of Ms Matthews’ oral evidence, persuades me that the Tribunal’s findings were open to it. Recognising the obvious limitations in assessing a transcript of a witness’ evidence, the transcript nevertheless suggests an argumentative tone in many of the answers given by Ms Matthews to the questions asked.

65    Fourth, even if the Tribunal erred in failing to provide reasons for its finding that Ms Matthews was argumentative and defensive in giving evidence and did not present as an impartial witness, in my view the error was not material to the Tribunal’s decision and therefore was not a jurisdictional error. It is clear from the decision that the Tribunal gave Ms Matthews’ evidence limited weight because her opinion did not adequately engage with Mr Leone’s personal circumstances and because her opinion was based on a single telephone interview and her review of a limited number of documents (at [56]). I am not satisfied that any error in the Tribunal’s failure to give reasons for its finding about the manner in which Ms Matthews gave evidence deprived Mr Leone of the possibility of a successful outcome before the Tribunal.

Ground Two

66    By ground two, Mr Leone contends that the Tribunal breached its procedural fairness obligations by making the finding that drug addiction had not played a part in his past offending without putting him on notice that that was an issue in the hearing. Mr Leone submitted that the fact he had a past drug problem which was a contributing cause of his offending was not an issue before the delegate.

67    A failure to put an applicant on notice of an adverse issue in the review that is not obviously open or apparent from the material and is relevant to the ultimate conclusion may be a breach of the requirements of procedural fairness: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [35]-[43]. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which was cited with approval by the High Court in SZBEL (at [32]), the Full Court stated (at 591-592):

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

68    In my view, this ground of review is based on a misstatement of both the Tribunal’s findings and the delegate’s findings. In both instances, the findings are more qualified than was suggested in Mr Leone’s submission.

69    The issue of drug taking arises under the topic of the likelihood of re-offending. Under Direction 65, a mandatory consideration whether to revoke the cancellation of a visa is the likelihood of the non-citizen engaging in further criminal or other serious conduct (see paragraph 13.1.2(2)(b) set out above). Mr Leone can be taken to have known that the likelihood of re-offending was in issue at the hearing before the delegate and the Tribunal. That being the case, Mr Leone can be taken to have known that the causes of his previous offending also had the potential to be in issue at the hearing.

70    Mr Leone submitted that the Minister’s delegate had found that his drug taking and gambling were causes of his offending. That submission overstates the position. The findings of the delegate were more qualified. The delegate referred to a psychological report of Ian Joblin dated 21 November 2016 which referred to statements made by Mr Leone about his drug use and gambling problem and found:

[29] I accept Mr Joblin's findings and that Mr Leone's personal difficulties contributed to his own drug usage and accordingly to his criminal offending. However, while this helps to explain how he came to offend, it does not in any way excuse or mitigate that offending. In my view it is quite clear from the information in sentencing remarks that Mr Leone was not only the main organiser of the drug trafficking operation, but that his role required that he exercise careful and well thought out organisation and administration. He could not remotely be said to have been drawn into criminal activities under the influence of other persons or not to have fully understood what he was doing. Indeed, it was under his leadership that other persons such as his partner and the manager of his pool hall became involved.

71    It is apparent from the foregoing passage that the delegate considered that Mr Leone’s offending in 2009 could not be wholly attributed to his drug taking and that it was only a contributing factor. The delegate found that the offending required careful and well thought out management by Mr Leone. On the risk of re-offending, the delegate found as follows:

[34] I accept that Mr Leone is remorseful and that he has engaged very positively with rehabilitation training and counselling during his incarceration. However the fact remains that he has been convicted of serious drug trafficking on four occasions over a period of 19 years. Mr Joblin noted in his report that "Mr Leone was emphatic that the basis for the offences for which he is currently serving a sentence and the offences for which I saw him previously which occurred in 2003 were based on drug use, gambling and an associated antisocial lifestyle. In 2005 I indicated that Mr Leone wanted nothing further to do with that life style, being aware that it brought him to the attention of the police ... Unfortunately further offences were committed." In my view, Mr Leone has had at least four opportunities to learn from his convictions and cease his involvement in the drug trade. He has previously stated that he would not reoffend, but has done so. I cannot be confident that this will not happen again if he is allowed to remain in Australia.

72    The Tribunal’s findings with respect to the likelihood of Mr Leone’s re-offending are set out above. At paragraph 52 of its reasons, the Tribunal accepted Mr Leone’s evidence that he was drug-free during his imprisonment and that he had engaged in rehabilitation programs for drugs and gambling. However, the Tribunal did not give any significant weight to those factors (in assessing the likelihood of re-offending) because the Tribunal was not satisfied that drug-taking and gambling had played a significant part in Mr Leone’s offending in 2009. I note that the Tribunal did not find that drug taking played no part in the offending. The Tribunal’s finding was that it was not satisfied that it had played a significant part. The reasons for that finding were explained by the Tribunal at paragraph 53. The Tribunal found that the evidence regarding the extent of Mr Leone’s drug-taking prior to 2011 was unclear and summarised that evidence. The Tribunal’s ultimate finding on the issue was that the offending in 2009 was not a situation of a drug-addicted person engaging in trafficking to support their habit.

73    The risk of re-offending was a live issue in the hearing before the Tribunal. In my view, the significance of Mr Leone’s drug taking as a contributing factor to his offending in 2009 was an issue before the delegate and was therefore an issue before the Tribunal. Further, that Mr Leone was aware of this issue is demonstrated by the evidence adduced by him before the Tribunal:

(a)    The significance of Mr Leone’s drug taking was addressed in the Joblin report dated 21 November 2016 which was referred to by the delegate.

(b)    In his statement dated 20 December 2017, Mr Leone stated (at [19]):

I know another chance is a lot to ask for, but I have really reached out for help in prison, which I never did before. I have done all the gambling and drug and alcohol courses that I could. My sentence has given me the opportunity to reform. I have broken my drug habit and haven't used. I never reached out before for any kind of help before with my drug problem, because I thought I was in control, but I now realise that wasn’t the case. I have got the help I needed and I have changed.

(c)    Mr Leone elaborated on that evidence in his statement dated 13 August 2018 at [14], [15], [17] and [25].

(d)    In her report dated 15 August 2018, Ms Matthews attributed the cause of Mr Leone’s offending to his drug taking, stating:

(at page 2) As to why he had not heeded a 2006 warning regarding his visa, Mr Leone related his drug use to his crime, "I stayed clean for 5-6 years then slowly got back into cocaine and with that the wrong crowd."

and

(at page 7) Mr Leone's reoffending in the writer's view has its basis primarily in his illicit substance use.

74    In my view, it is apparent from that material that Mr Leone was aware that the significance of his drug taking as a contributing factor to his offending was an issue before the Tribunal and sought to address that issue through the abovementioned evidence. Ultimately, the Tribunal was not satisfied that drug taking was a significant factor. That was an adverse finding that was open on the material before the Tribunal. In my view, Mr Leone was not denied procedural fairness on that aspect of the review.

Ground Three

75    By ground three, Mr Leone contends that the Tribunal’s finding that the risk of re-offending was unacceptable was based on irrational reasoning. The alleged irrationality was the finding, at paragraph 56 of the Tribunal’s reasons, that Ms Matthews’ opinion about the risk of re-offending was not correlated with the particular circumstances of Mr Leone.

76    Ms Matthews gave evidence that the statistical likelihood of re-offending declines with age, especially after 50, and after a lengthy sentence, being a sentence of more than 3 years. Mr Leone submitted that he answered that statistical profile because he was over 50 and had received a sentence of over 3 years. Despite that, the Tribunal gave that statistical evidence limited weight because it was not correlated with the particular circumstances of Mr Leone. Mr Leone submitted that, viewed objectively, his circumstances did correlate with Ms Matthews’ evidence concerning the statistical likelihood of re-offending. It was submitted that this aspect of the Tribunal’s reasons is unintelligible.

77    The Tribunal's review may involve jurisdictional error if its conclusion or reasoning lacks a rational, logical or probative basis (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131]) including with respect to a finding made by the Tribunal “along the way” to its ultimate conclusion (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [60]). However, emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality: CQG15 at [61].

78    Paragraph 56 of the Tribunal’s reasons is discussed above as part of Mr Leone’s first ground of review. For the reasons there set out, I do not consider that the reasoning of the Tribunal was unintelligible or can be characterised as irrational. The Tribunal’s finding, although stated relatively briefly, was that it was unwilling to give much weight to the statistical evidence of re-offending cited by Ms Matthews on its own, divorced from the particular circumstances of Mr Leone. It is plain that the circumstances being referred to by the Tribunal were not Mr Leone’s age or the duration of his sentence. The circumstances were those addressed by the Tribunal in the immediately preceding and following paragraphs. Those circumstances included:

(a)    at paragraph 42, that prior to Mr Leone’s imprisonment in 2011, he had a well-established pattern of re-offending in relation to the possession and trafficking of drugs and the penalties imposed by the courts escalated with each trafficking offence, indicating that the court regarded his repeat offending as increasingly serious;

(b)    at paragraph 49, that while Mr Leone cares about his family and wishes to fulfil his role as a father and grandfather and as a supportive son to his aged mother, that was also the case before his imprisonment in 2011;

(c)    at paragraph 50, that at the time of his offending in 2009, his family responsibilities were arguably greater than they are now and yet that did not deter him from engaging in the extensive criminal activity for which he was convicted and involving his partner in his offending to the point where she was convicted as a co-offender and sentenced to 20 months’ imprisonment;

(d)    at paragraph 58, that while Mr Leone regrets having gone to prison and having been separated from his family, he only briefly addressed the effects of his offending (on the community) in his witness statement and expressed remorse briefly, in the most general of terms; and

(e)    at paragraph 59, that Mr Leone has consistently failed to accept responsibility for his criminal conduct and admit guilt, including by pleading not guilty to each of the trafficking offences of which he has been convicted and persisting with his denials under cross-examination at the hearing.

79    In my view, there is nothing irrational in the Tribunal’s conclusion with respect to the weight to be given to the statistical evidence of re-offending cited by Ms Matthews. Minds may differ on the weight to be given to such evidence. It can be noted that Ms Matthews conceded in her written evidence (at page 7) that, unlike some recidivism statistics, for example those concerning sexual offending, the statistics for drug related re-offending are less clear. The statistics cited by Ms Matthews relate to all types of offending, they are not confined to drug related offending. No error is shown in the Tribunal’s conclusion.

Conclusion

80    In conclusion, none of the grounds of review advanced by Mr Leone disclose jurisdictional error in the Tribunal’s reasons. Accordingly, I dismiss the application with costs.

Associate:

Dated:    4 October 2019