FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 1670

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely on the amended grounds of application.

2.    The application for review be allowed and the decision of the Administrative Appeals Tribunal dated 20 November 2018 be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3.    The first respondent to pay the applicant’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

ABRAHAM J:

1    The applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the Minister’s delegate not to revoke the cancellation of the applicant’s visa.

2    For the reasons set out below, the application is allowed.

Background

3    The applicant is a citizen of India who first arrived in Australia on 21 March 1988 as the holder of a Class UA visa. He was subsequently granted various bridging visas and then a Class BF Subclass 154 Transitional (permanent) visa on 25 June 1998.

4    Between 1998 and 2017, the applicant was convicted of numerous offences. The Tribunal described them as “some 30 separate offences,” including: numerous breaches of Apprehended Violence Orders (AVOs) and bail conditions; two counts of common assault; one count of assault occasioning actual bodily harm; several matters involving domestic violence; the unlawful possession of an air pistol and laser pointer; one count of credit card fraud; two charges of attempting to influence a witness; motor vehicle related charges; charges for minor drug or controlled substances possession; charges for having goods in custody suspected of being stolen; property damage; shoplifting; and failure to appear in court.

5    The Tribunal focused on a more limited number of offences, as follows:

(1)    Assaults: (1) an unprovoked attack on a pharmacist after the applicant’s partner was detained for shoplifting during which the applicant punched the pharmacist in the face and kicked him when he fell to the ground; and (2) an incident where the applicant took the person with whom he was staying at the time in a headlock and repeatedly punched him;

(2)    Damage property: (1) an incident where the applicant damaged a bus door because it would not stop to allow his partner to board; and (2) a “road rage” incident, where the applicant confronted another driver over access to a parking spot, verbally abused the other driver, intimidated him and threw his keys at the other driver’s window causing it to shatter;

(3)    Domestic violence: incidents between the applicant and his partner, Ms Makepeace, including: (1) an incident in September 2016 when the applicant gave his pregnant partner what was described as a “bear hug” in breach of two bonds which were suspended sentences of twelve months for previous assault charges. The sentencing Magistrate warned him against committing further acts of violence against Ms Makepeace and placed him on a bond to that effect; (2) on 25 December 2016 a violent confrontation between the applicant and Ms Makepeace when the police attended and varied the applicant’s AVO imposing additional conditions; and (3) on 26 December 2016 when the applicant, amongst other things, threw a mango at Ms Makepeace which hit her resulting in the applicant being apprehended and charged with counts of domestic violence and breaches of AVOs;

(4)    Breaches of AVOs and bail conditions: the applicant has consistently breached AVOs and committed numerous breaches of his bail conditions; and

(5)    Attempt to influence witnesses: namely the phone conversations had by the applicant with Ms Makepeace whilst he was in custody in which he attempted to persuade her to change her testimony which she had given to police and to make herself unavailable to receive subpoenas requiring her to appear in court to give evidence.

6    In October 2017 the applicant was sentenced to an aggregate sentence of imprisonment of 13 months, which was reduced on appeal to 11 months of imprisonment. While the orders granting the appeal were before the Tribunal, there does not appear to be a copy of any reasons given by the presiding judge.

7    On 6 April 2017, the applicant’s visa was cancelled under s 501(3A) of the Migration Act because he did not pass the “character test” within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Migration Act. On 5 May 2017, the applicant made a request to the Minister’s department that the cancellation decision be revoked. On 28 August 2018, a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation.

8    On 4 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the visa cancellation. On 8 and 9 November 2018, the applicant appeared at a hearing before the Tribunal. The applicant was unrepresented at that hearing and presented submissions. On 20 November 2018, the Tribunal affirmed the decision under review.

Tribunal decision

9    This summary only provides an overview of the reasons, with a more detailed consideration of some aspects of the reasons in the consideration of the applicant’s grounds for review.

10    The Tribunal set out the applicant’s personal and visa background and detailed written and oral evidence before it.

11    The Tribunal set out the relevant legislative framework and summarised Ministerial Direction 65. Relevantly, this is as follows (citations omitted):

10. Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:

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

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

... 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.

11. This visa cancellation process is mandatory.

12. Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:

(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c) the person has been sentenced to a term of imprisonment of 12 months or more;

13. It can thus be seen clearly in relation to Mr Singh that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.

14. Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.

15. Section 501CA of the Act outlines the process:

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

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

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

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

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

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

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

(ii) particulars of the relevant information; and

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

16. It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:

(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.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

17. A decision on such an application is, in most circumstances, made by a Delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside. This is the reviewable decision.

18. In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.

12    The Tribunal detailed the applicant’s criminal history, sentencing remarks of various magistrates, and details of a traumatic event experienced by the applicant. In doing so the Tribunal made a number of factual findings.

13    The Tribunal considered the factors identified under Ministerial Direction 65 (Direction 65). The Tribunal identified the “primary considerations” and “other considerations” in Direction 65 which relate to revocation requests as follows:

(1)    Primary considerations:

(a)    Protection of the Australian community;

(b)    Best interests of minor children in Australia affected by the decision; and

(c)    Expectations of the Australian community.

(2)    Other considerations:

(a)    International non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    Impact on Australian business interests;

(d)    Impact on victims; and

(e)    Extent of impediments if removed.

14    In relation to the protection of the Australian community the Tribunal found that the applicant poses a medium to high risk of reoffending. The Tribunal concluded it was “not persuaded that he has genuinely learned his lesson from a whole series of previous warnings by judicial officers and by being given multiple chances to refrain from reoffending – none of which he has taken”.

15    In relation to the best interests of minor children the Tribunal found that it would be in the best interests of the minor child were the applicant to be allowed to remain in Australia and it counted this consideration to be in his favour. In making that finding the Tribunal bore in mind that the applicant’s record includes acts of domestic violence against the minor child’s mother and attempts to involve her in the giving of false evidence.

16    In relation to the expectations of the Australian community the Tribunal found that the community would be unsympathetic to the applicant. It concluded that the community would regard the applicant’s actions as unacceptable and inexcusable and that it would seek protection from the significant likelihood of his reoffending.

17    As to the other considerations, the Tribunal accepted that the applicant had lived in Australia almost his entire life, having arrived as a very young person and it acknowledged his employment and charitable contributions. Noting that the applicant’s minor child and immediate family members are resident in Australia as citizens who would not relocate to India if he were removed, the Tribunal found that the strength, nature and duration of ties to Australia weigh in his favour. The Tribunal found that whilst there was no doubt there would be substantial impediments to removal there was nothing to suggest that if relocated to India, the applicant would be unable to obtain employment, and remain in contact with his daughter and immediate family, albeit by far less satisfactory means. The Tribunal concluded that this factor must weigh in the applicant’s favour and that it was more than just minimal.

18    The relevant considerations the Tribunal found in favour of the applicant were: (i) the best interests of the minor child; (ii) the strength, nature and duration of ties to Australia; and (iii) the extent of impediments if removed from Australia. Against him, it found were the protection and expectations of the Australian community. The Tribunal concluded having weighed the considerations that it was “strongly of the opinion that the negative factors outweigh substantially the positive factors and that the balance must be found to lie against the application”.

Grounds of review

19    There were five grounds of review in the original application which were as follows (with any errors in the original included):

1. Not considering all aspects of the best interests for a child According to United Nations Convention on the Rights of the child[ Article 9.3) States, Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

2. Also [ Article 10.2 ] Articulates, a child whose parents resides in different States shall have the right to maintain on a regular basis. save in exceptional circumstances personal relations and direct contacts with both parents

3. The decision maker for the [ AAT]. erred in deciding in the applicants case. Stating (para.111) that he has not played a significant role in his daughters life to date and that there is no way of knowing that his daughter is aware of his presence in her life despite the fact that both parents claim that she is aware of his presence and they have a strong bond as he has continued receiving visits as well as phone contact with his daughter quite regularly. Yet In (para.112) it is stated that the tribunal accepts that it would be in the best interests of the minor child where Mr Singh to be allowed to remain in Australia.

4. There is limited/incomplete mention of Ms Makepeaces response when asked about their possible future (para.131). It is clear in her evidence that her principal concern is to secure support ( emotional & financial) and that she did not necessarily expect that they would have a close and intimate relationship expressing "we'll just see what happens." it is not mentioned that she went on to say that given he applies changes and gains employment she does anticipate continuing having a family with Mr Singh.

5. There is also little recognition given to Mr Singhs Deed of Good Charachter and act of bravery which has been recognised by Police and victims services. Mr Singh put himself in harms way when he came to the aid of a man being stabbed outside his residence. His efforts resulted in the detaining and arrest of the assailant and prevented any other onlookers from being attacked and injured.

20    The applicant was unrepresented at the hearing of the application. He provided a written submission in advance of the hearing. He also made detailed oral submissions and identified a number of areas in which he submitted the Tribunal was in error. A number of these complaints were not encompassed in the grounds as drafted. Nonetheless, the respondent addressed the arguments raised during oral submissions.

21    At the conclusion of the hearing I granted leave to the applicant to file amended grounds to include those grounds he had argued during the hearing.

22    The amended grounds were filed on 29 August 2019 and relevantly were in the following terms (with any errors in the original included):

1. The paragraph stating “it wasn’t loud nor clear” and that insinuation of re-offending when I clearly have not re-offended.

2. Not considering psycological reports and content of my treatment which specifically deals with managing anger and agression.

3. disregarding partners evidence in full. and assuming my partner doesn’t love me or need me

4. Disregarding my bond and relationship with my daughter.

23    I note that elsewhere on that amending document there are other statements which I have taken to be descriptors of some of the grounds identified above and are therefore encompassed in those grounds. Those additional statements are (with any errors in the original included):

1. Making decision based on false assumption and not considering psychological evaluations

2. That the tribunal has falsely labelled me as a reoffender. And unfairly assumed me to be at med-high risk of reoffending

24    On 5 September 2019, the respondent filed further submissions in response to the applicant’s amended grounds. The respondent does not object to leave being granted to the applicant to rely on the amended application.

25    I grant leave for the applicant to rely on the amended grounds of application.

Consideration

26    The topics raised by the original grounds generally appear to be encompassed by the amended grounds and therefore it is appropriate to address those amended grounds of review.

27    The applicant, being unrepresented, not surprisingly made some submissions which were a complaint about factual findings involving no more than an argument about merit. Underlying the submissions was a plea by him to stay in the country. In that context it is appropriate to note that the jurisdiction of this Court on the application is limited to jurisdictional error being established by the applicant, as explained in the paragraph below.

28    Grounds 3 and 4, as articulated during the hearing, properly fall into the category of a merits review (I note that the original grounds 1 and 2 are encompassed within ground 4 of the amended ground). In relation to the evidence of the applicant’s partner (ground 3) and the Tribunal’s finding as to his relationship with his daughter (ground 4), the applicant’s complaint relates to the Tribunal’s factual conclusions. The applicant submitted in relation to each that the conclusions made by the Tribunal should have been different. However, the weight to be given to the evidence and submissions before it is a matter for the Tribunal, and not for this Court on an application for judicial review: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (citing Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J). I note in any event, that the Tribunal accepted that it was in the best interests of the minor child to allow the applicant to remain in Australia, and it counted this factor in his favour.

29    I note that only ground 5 of the original grounds, which relates to the “act of bravery” outlined below, appears to not be covered by the amended grounds. However, that ground also properly falls into the category of a merits review and for the reasons given above, is not a matter for this Court.

30    However, the applicant’s grounds 1 and 2 of the amended grounds fall into a different category. There is substance in each ground and they are appropriately addressed together.

Amended grounds 1 and 2

31    Before considering the details of the two alleged errors, it is necessary to consider the context in which the findings were made. That requires considering the submission which the applicant advanced before the Tribunal as to why his application should succeed.

32    It is uncontentious that in 2015 the applicant witnessed a fatal stabbing which took place at a bus stop outside the apartments in which he was living. A person unknown to the applicant was being stabbed by a person wielding a knife. The applicant intervened to protect the victim and was also threatened with a knife by the assailant. He had to defend himself to avoid serious injury. The victim of the assault subsequently died as a result of the attack. Mr Singh’s intervention was referred to as an act of “bravery” by a sentencing magistrate who took those actions into account when later sentencing the applicant.

33    The applicant submitted that he was affected by this incident, but until more recent times in 2018, he had not accepted or recognised the impact the incident had on him. He submitted that as a result of his failure to accept that he had a problem he had not sought or obtained the help he needed. He submitted that in 2018 he sought help. To that end he submitted that he had been attending counselling where it was recognised he was suffering from PTSD as a result of the incident described above. In the Tribunal the applicant relied on a number of clinical records dated from 5 March 2018 to 24 September 2018 which relate to sessions he attended with a psychologist, and at least on one occasion a psychiatrist, whilst in immigration detention to address this issue, amongst other things.

34    The applicant submitted he was receiving help and that it is assisting him. He submitted, in effect, that he now accepted he had a problem and he wanted to change and had taken steps to do so. He also relied on the fact that each of the clinical records from that time assess him as being of a low risk of harm to others.

35    Against that background I turn to the two grounds.

36    Ground 1 relates to a statement made by the Tribunal based on sentencing remarks from judicial officers who had imposed sentences on the applicant.

37    As noted above, the Tribunal described the applicant’s offending and recited parts of various sentencing remarks in its reasons. Relevantly under the heading “Sentencing Magistrates comments” were the following paragraphs [25] – [32] (with citations omitted):

25. The Tribunal notes that on several occasions before his most recent matter before the court, sentencing magistrates had clearly warned Mr Singh of the potential consequences of further offending behaviour.

26. Magistrate Williams on 2 November 2015 noted that Mr Singh had breached two bonds in the process of coming before him and that in giving him another chance he needed to understand that further offences could land him in jail. Mr Singh acknowledged this saying, “I completely understand. I’ll keep my nose out of trouble.”

27. Magistrate Greenwood, on 13 March 2017, noting some prospect for his rehabilitation, made the same point about observance of the AVO she was imposing. Her Honour said, “You are going to have to be very, very careful. Do you understand me?”. To this Mr Singh replied, “I do understand you completely, your Honour”.

28. Magistrate Quinn, only three days later, on 16 March 2017, placed Mr Singh on a bond for 15 months in relation to his credit card fraud offence. Her Honour asked Mr Singh if he understood the terms of the bond. She said, “Do you understand that?” He replied, “Yes, your Honour”. She continued, “Any breach of this bond and you’ll be back in there.” He replied, “Loud and clear, your Honour.” Driving home the point, Her Honour, “Loud and clear?” Mr Singh in response “Yes”.

29. Mr Singh’s understanding was obviously neither loud nor clear.

30. On 26 October 2017 Magistrate Keogh dealt with a combination of charges arising from the domestic assaults of December 2016, the repeated breaches of the AVO and the “act with intent to influence witness” charges. On that occasion Her Honour stated, noting that Mr Singh was on bail from criminal behaviour at the time of some of the offences:

“I note from looking at his records that he has breached a suspended sentence, I note also he has a history of violence so that is a consideration when it comes to the prospects of rehabilitation ….. That violence occurred at a time when he (sic) was an order which was to restrict his behaviour and provide that victim with protection, and clearly it did not….. I also accept generally that some of that contact was relatively benign but the justice offences are really serious, influencing a witness carries a period of seven years ….. He asked the victim in the manner to retract her evidence and then not attend court. They are of the type that as was acknowledged, that strike at the heart of the justice system and also at the protection afforded to persons in need of protection by orders such as apprehended violence orders and the community’s concerns they also strike at the community’s concerns about the protection of vulnerable victims in relationships which are unfortunately the subject of domestic violence.”

31. In order to come within the purview of section 501(7)(c) of the Act, a person must be sentenced to a term of imprisonment for 12 months or more. Mr Singh’s relevant offences were the assault on the pharmacist and security guard which took place on 10 September 2015. On 2 November 2015 Magistrate Williams convicted Mr Singh of two offences of common assault for which His Honour imposed two 12 months term of imprisonment which were then suspended under section 12 of the Crimes (Sentencing and Procedures) Act 1999 (NSW). His Honour then made it very clear to Mr Singh that, “…were you to commit any other offence over the next 12 months you’ll go to gaol”. As noted above, Mr Singh indicated that he understood that.

32. Nevertheless he reoffended and in March 2017 Magistrate Greenwood found that he had breached those bonds and she revoked them. As a result Mr Singh was committed to jail to serve those sentences.

38    Two aspects of the passages need to be highlighted. First, the premise of this section of the reasons is, as stated in paragraph [25], to illustrate that before the applicant’s most recent matter before the court, the applicant had been warned by sentencing magistrates about the potential consequences of reoffending. The most recent matter being the sentencing on 26 October 2017. Second, having quoted in paragraph [28] some comments of Magistrate Quinn in which the applicant replied that he understood the warning “loud and clear”, the Tribunal in [29] concluded that the applicant’s understanding was “obviously neither loud nor clear”. The Tribunal then went on to detail the sentencing on the last occasion which related to conduct in December 2016.

39    The applicant submitted that he had not committed any further offences since the last two warnings had been given. The applicant submitted that the statement that it was “obviously neither loud nor clear” insinuates he has reoffended when he had not.

40    The respondent submitted that paragraphs [30] – [32] make it clear that the Tribunal knew that the sentencing in October 2017, recited in paragraph [30], related to offences that took place before the warnings in paragraphs [27] and [28] were given. The respondent contended that there is otherwise nothing in the Tribunal’s reasons indicating that it confused the date of the court hearings with the dates of the particular offences. Further, there is no indication that paragraph [29] was meant to specifically be a suggestion that the applicant was given a warning and then committed a further offence and that instead it should be understood as the Tribunal’s assessment that the applicant has not gained and did not gain over the course of various court processes sufficient understanding and insight into his offending behaviour. The respondent submitted that, when the Tribunal’s reasons are read as a whole (including the structure of the reasons, and how it reveals a thorough understanding of the evidence), it should not be inferred that the recitation of paragraphs [27] and [28] reveals a misunderstanding by the Tribunal that, after being given a warning on those two dates, the applicant proceeded to reoffend. The respondent sought to rely on the principle that the Court should not read the Tribunal’s reasons with an eye keenly attuned to error. The respondent submitted that the Tribunal’s lack of persuasion that the applicant has learnt his lesson is reflective of two matters: first, the extensive offending history that the Tribunal was dealing with before it in the documentary material which, through the sentencing records, reveals a number of second chances to not reoffend, by way of bonds, bail and bail conditions, suspended sentences and fines beginning from 1998; and second, its conclusion after the Tribunal’s hearing and having heard the oral testimony before it. In additional written submissions filed after the hearing, the respondent reiterated its submission that a fair reading of the reasons reveals that the Tribunal did not proceed on any misapprehension and that it should be read in the context that the applicant had, despite being warned by a Magistrate in 2015, subsequently been charged with offences. Further, it was submitted that to treat those paragraphs as revealing a misapprehension on the part of the Tribunal gives the reference to “not loud or clear” a degree of prominence in the reasons that is not warranted and would ignore the remainder of the Tribunal’s reasons.

41    The respondent’s submission as to the interpretation of paragraph [29] cannot be accepted. It provides no explanation for why this section is in the Tribunal’s reasons and, in particular, it does not explain the relevance of paragraphs [25], [27] – [29] to the Tribunal’s task.

42    The plain reading of the passage is that the applicant did not take heed of the warnings it had recited and reoffended. In particular, paragraphs [28] and [29], when read together, imply that the applicant had reoffended after the warning given by Magistrate Quinn on 16 March 2017, recited in paragraph [28]. This is also made clear by paragraph [25], which explains the purpose of this section of the reasons, where the Tribunal stated that “on several occasions before his most recent matter before the court, sentencing Magistrates had clearly warned Mr Singh of the potential consequences of further offending behaviour”. However, as the respondent conceded, the applicant has not in fact committed any further offences since the warnings given by the sentencing magistrates recited in paragraphs [27] and [28], which led to the Tribunal’s conclusion in [29]. The sentencing on the three occasions in 2017 (recited in [27], [28] and [30]) all related to offending that occurred at an earlier point in time. There is no factual basis for the Tribunal’s conclusion in paragraph [29] that when the applicant responded “loud and clear” he did not heed that warning.

43    Contrary to the respondent’s contention, there is no basis to read paragraph [29] as referring to the Magistrate’s warning in 2015, referred to in paragraph [26]. Indeed, paragraph [29] picks up the language of the warning, and the applicant’s response to the Magistrate, referred to in paragraph [28]. It directly related to that warning. Moreover, the submission is inconsistent with the reference in paragraph [25] to there being several occasions the applicant had been warned before his most recent matter, with those warnings being recited to include paragraphs [27] – [29].

44    The Tribunal’s finding in paragraph [29] has no factual foundation. The factual error in this paragraph is adverse to the applicant, as I will deal with in further detail below.

45    Ground 2 relates to the clinical psychologist records referred to by the Tribunal as a “Psychologist Report”, comprised of a number of separate entries made over the period 5 March to 24 September 2018, provided to the Tribunal by the applicant.

46    The Tribunal referred to the psychologist reports, and concluded at [70] (citations omitted):

Mr Singh submitted a Psychologist’s Report prepared by International Health and Medical Services (IHMS) who are contracted to provide medical services in Australia’s immigration detention centres. The report consists of a number of separate entries made over the period from 5 March to 24 September 2018. The reports cover issues such as Mr Singh’s experience with and reaction to the traumatic event described above; his concerns about the termination of his previous partner’s pregnancy; his participation in anger management courses while in custody; his depression and problems sleeping and his preference to address his issues without the use of medication. He was assessed as being of “low risk” of self-harm or harm to others. One report specifically refers to Mr Singh saying that “he wishes to make change to his behaviour – he wants to be a good father – regards this as important to him as he has already lost one child.” The report does not contain any detailed analysis of Mr Singh’s attitude towards issues of violence nor his appreciation of his responsibilities to obey the law and conform to accepted social norms in that regard. It does not address directly any of the fundamental issues which are before the Tribunal for determination.

47    The psychologist reports address, inter alia, that the applicant had symptoms of PTSD, the manifestation of those symptoms, his attitude and why he has sought help, that he has completed an aggression course and a domestic violence course, his acceptance that he needs professional help and support, and how to handle the situations in which previous offending had occurred (including in his relationships). The reports described the applicant’s active engagement in the process and that he continues to attend therapy regularly. For example,

PJ also reflected and sought to better understand how the sx of PTSD contributed to his offences i.e. irritability, anger, hyper vigilance and how through a deeper understanding of PTSD as a syndrome, he is able to increase his awareness of and manage his emotions

…

PJ continues to attend therapy each week in order to improve his negative cognitions about himself, others and the future. His goal is to prevent re-offending, and to endeavour to enter into romantic relationships with healthy boundaries in the future.

48    In each report, there is a section headed “risk assessment” which includes what appears to be an assessment by the psychologist conducting his sessions. As an example, the report for 27 August 2018 stated as follows:

Risk Assessment

Risk of self harm: Low

Risk of harm to others: Low

Risk of harm from others: Low

Protective factors:

-    daughter

-    family support

-    future orientated

-    motivated for change

-    high level of engagement in psychological therapy

-    increasing levels of insight

49    Each report contained this “risk assessment” section, and in each entry the “risks” are described as “low” and the protective factors are of similar descriptions. In particular, in each entry in the reports the “risk of harm to others” description is “low”.

50    The respondent submitted that the psychologist reports were “mental health records of the detention psychologist dealing with the self-reporting of matters arising”. The respondent submitted that the manner in which the Tribunal dealt with the reports was open to it. It was submitted that this was a matter of weight and the Tribunal gave the reports the weight that it considered appropriate, given their contents. In the respondent’s further written submissions, the respondent submitted that the Tribunal had identified the psychologist reports provided by the applicant, and that the Tribunal had regard to the contents of the reports, including the part regarding the applicant being assessed as low risk of harm to others, and referred to parts of paragraph [70] to support this submission. Reiterating the respondent’s earlier submissions, the respondent contended that the Tribunal’s conclusion on the reports was open to it, and that insofar as the applicant’s contention is understood to be that the Tribunal placed too much weight on other material, it is well established that it is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight. The respondent referred to other parts of the Tribunal’s reasons, such as its consideration of the 2017 report prepared by a Corrections Officer regarding the applicant’s risk of reoffending and submitted that within that context, and by having regard to all the evidence before it, the Tribunal concluded that the risk of reoffending was well above being low to minimal. It was submitted that the fact that another decision maker or the Court could have come to a different conclusion on the basis of the evidence or might have placed greater reliance upon different pieces of evidence was not the point.

51    However, the final sentence of paragraph [70] cited above states that the psychologist report “does not address directly any of the fundamental issues which are before the Tribunal for determination”. This sentence involves the Tribunal making a finding as to the contents of the psychologist reports in light of its statutory function. When regard is had to the issues before the Tribunal, which include an assessment as to the protection of the Australian community, (being a primary consideration under Direction 65) which involves consideration of the risk of the applicant re-offending, at least some of the contents of the reports plainly address those issues. For example, as extracted above, one entry records that the applicant was directly addressing the contributing factors to his offending, and his goal to prevent re-offending through addressing these factors. The Tribunal’s finding in the last sentence of [70] mischaracterises the content of the reports, and their relevance to the issues before the Tribunal. The error is adverse to the applicant, as I will deal with in further detail below. Contrary to the respondent’s submission, the conclusion of the Tribunal is not simply one of weight.

Has jurisdictional error been established

52    While these two errors have been established, the issue is whether they amount to jurisdictional error. The respondent submitted that if there are errors, they were not material to the Tribunal’s decision, such as to amount to jurisdictional error. It may be accepted that mistakes are made. It also is well settled that the reasons of an administrative decision maker are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

53    Jurisdictional error can be established if a decision is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [102] per Crennan and Bell JJ, citing Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37] – [38]. The relevant principles are set out in SZMDS at [130] – [131] and [135] per Crennan and Bell JJ (emphasis added):

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims.There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

54    In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) the Full Court, per Griffiths, Perry and Bromwich JJ further described the relevant principles in relation to establishing jurisdictional error on the basis of illogical or irrational findings of fact, at [47]:

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

55    There are a number of aspects of the above passages which ought to be highlighted.

56    To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: SZMDS at [131], [135] per Crennan and Bell JJ; Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] per Perram, Farrell and Thawley JJ. Illogicality or irrationality giving rise to jurisdictional error may be made out if there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135] per Crennan and Bell JJ; Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] per Perram, Farrell and Thawley JJ. The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it: SZMDS at [133] per Crennan and Bell JJ.

57    A claim of illogicality and irrationality may extend to fact finding on the way to the ultimate conclusion, although the overarching question is whether the decision was affected by jurisdictional error: ARG15 at [47] per Griffiths, Perry and Bromwich JJ; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [151] per Robertson J; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61] – [62] per Wigney J; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [54] per Wigney J; CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [58] per Murphy, Mortimer and O’Callaghan JJ (citing ARG15 at [47] with approval).

58    Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: CGA15 at [59] (citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 (SZMTA)at [2], [3], [48] and [49]). The appellant has the onus to show that the error is material: CGA15 at [59] (citing SZMTA at [4] and [41]). Further, an irrational or illogical finding of fact will not generally give rise to jurisdictional error if that finding was immaterial, or not critical, to the ultimate conclusion or end result: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41(d)]. As to the scope of judicial review for jurisdictional error of fact-finding, the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (CQG15) at [38] per McKerracher, Griffiths and Rangiah JJ, observed that findings of fact, including findings of fact relating to credibility, are susceptible to judicial review on several grounds:

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)    reaching a finding without any logical or probative basis;

(c)    unreasonableness; and/or

(d)    jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451.

59    See Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 per Logan, Griffiths and Moshinsky JJ (Gill) at [64] in which this passage is cited with approval. See also AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41] per Kenny, Griffiths and Mortimer JJ, in which the Full Court summarised the relevant principles to be applied in determining whether adverse credibility findings lead to jurisdictional error. And see for an application of the principles: Gill at [59] – [82], [94]; Ayache v Minister for Home Affairs [2019] FCA 80, in particular at [42] – [55] which involves a similar factual scenario.

60    In regards to whether a mischaracterisation or misunderstanding of the material before the decision-maker, or the making of a finding for which there is no foundation, results in a failure to consider relevant material, WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 (WAGO) is instructive. In that case, the Full Court found at [51], per Lee and R D Nicholson JJ, that the tribunal had no foundation upon which to base its conclusion that a corroborative witness should not be believed. Importantly, their Honours found at [54]:

The unwarranted assumptions of the tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the tribunal to disbelieve and disregard that evidence and constituted a failure by the tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219 at [4] per Gleeson CJ. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the tribunal failing to take into account relevant material. In misunderstanding the material before it, the tribunal thereby failed to have regard to relevant material, resulting in a decision for which the tribunal had neither authority nor jurisdiction under the Act: Yusuf [82]-[85] per McHugh, Gummow and Hayne JJ at. It follows that grounds for review of the tribunal's decision arise under s 476(1)(b) and (c) of the Act.

61    This passage was cited with approval by the Full Court, per Kenny, Kerr and Perry JJ, in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 when their Honours were summarising relevant principles regarding whether credibility findings give rise to jurisdictional error on the basis of unreasonableness, irrationality or illogicality at [30(3)] as follows:

By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676; [2002] FCAFC 437 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37].

62    Against that background I turn to the particular matters in this case.

63    In relation to ground 1, as noted above, there is no factual basis to the conclusion in paragraph [29] that when the applicant responded “loud and clear” that he did not heed that warning, being the warnings recited in paragraphs [27] and [28]. The finding was entirely unsupported by the evidence which was before the Tribunal. Based on the principles set out in SZMDS per Crennan and Bell JJ above, it was not open to the Tribunal to make that finding. The finding was not supported by logical grounds and lacked probative evidence.

64    The finding in paragraph [29] is seriously adverse to the applicant, both as to his conduct and his credit. The Tribunal relied on this, and other passages in reaching its conclusion in paragraph [109], discussed below. This error was material to the Tribunal’s reasons, in the sense described above, for the following reasons.

65    The task of the Tribunal as outlined above, was to determine whether it was satisfied there was another reason why the decision to cancel the applicant’s visa should be revoked: s 501CA(4). In making that assessment, the Tribunal was required to have regard to the criteria in Direction 65 recited at [13] above. The Tribunal considered the relevant criteria and then weighed these considerations in coming to its ultimate decision.

66    How a Tribunal frames its reasons is significant in assessing whether or not a particular finding is material: ARG15 at [73]. The erroneous factual finding in [29] was made early in the Tribunal’s reasons under the heading “Sentencing Magistrate comments” and it follows from the part of the reasons titled “Mr Singh’s criminal history”. It appears in the part of the reasons in which the factual material before the Tribunal is set out, in which the Tribunal makes some of its factual findings, prior to it making the required determination, which involved weighing up the various considerations in light of the evidence before it. It precedes later findings made by the Tribunal, adverse to his credibility. The reasons are structured in such a way that this finding, made at the outset, is prominent and serves as a prominent factual and adverse credibility finding which underpins a number of other conclusions made by the Tribunal. By dedicating a section of the reasons to the sentencing Magistrate comments for the purpose of demonstrating that the applicant has not heeded the warnings it recites (as is apparent from paragraph [25]) and then making the factual finding in paragraph [29], the obvious inference is that the Tribunal considered the finding material to its decision.

67    It is necessary to consider the other parts of the reasons in which the factual error in [29] is relied upon. This is particularly apparent in paragraphs [108] – [109], in which the Tribunal concludes that it was not persuaded that the applicant had learnt his lesson from previous judicial warnings. Those paragraphs are as follows:

108. The conclusion reached by the Tribunal, after consideration of all the evidence is that the assessment made by the Department of Corrective Services is correct and that Mr Singh poses a medium to high risk of reoffending. The risk is certainly well above any concept of being low to minimal.

109. The Tribunal is not persuaded that he has genuinely learned his lesson from a whole series of previous warnings by judicial officers and by being given multiple chances to refrain from reoffending – none of which he has taken.

(emphasis added)

68    These paragraphs are contained in the part of the reasons titled “Ministerial Direction 65: Provisions – Primary Considerations” and the conclusion in these paragraphs relates to the Tribunal’s consideration of the “protection of the Australian community” criteria. As the Tribunal notes, at paragraph [91], this consideration “requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending”. Given this context, and the nature of the application before the Tribunal, and the issues for it to address, a factual error which related to whether the applicant has reoffended is significant. The error directly undercuts the submission the applicant advanced to the Tribunal, which was that he was deeply sorry and remorseful for his behaviour, and that although it took him a long time to learn his lesson, he now had. He had been traumatised by the event (in which he intervened), but had now sought and was getting professional help which had assisted him to develop insight in to the nature of his behaviour and the need for change.

69    The Tribunal in [109] plainly had in mind its factual finding in [29] that the applicant had reoffended after each judicial warning. This error is both repeated in [109] (where the Tribunal states “none of which he has taken”) and also underpins, at least in part, the Tribunal’s finding in [108] that the applicant poses a medium to high risk of re-offending. This is supported by the Tribunal’s statement in paragraph [100] of its reasons, that “[w]hen determining the likelihood of future offending, reliance is most often placed upon past experiences”. It is clear from the Tribunal’s conclusion as to the risk of reoffending in [108] – [109] that reliance is placed on its mistaken belief that, historically, the applicant has reoffended after every judicial warning he has been given.

70    I note that the respondent submitted that paragraph [109] did not bear that meaning, but rather that it referred to other matters including the applicant’s extensive criminal history and that he had been given many chances by way of bonds, bail and suspended sentences, and the Tribunal’s assessment of the applicant’s evidence during the hearing. The respondent submitted that the paragraph talks about two concepts; first, that the Tribunal is not persuaded the applicant has learnt his lesson from a whole series of previous warnings by judicial officers, which is a comment about the Tribunal’s state of satisfaction after the hearing and has nothing to do with his reoffending and second, that the applicant has been given multiple chances to refrain from reoffending. I note also that the respondent submitted that paragraph [109] relates to the Tribunal’s state of satisfaction, rather than of the applicant’s reoffending, and that the part of [109] which states “none of which he has taken” refers to the chances he had been given to refrain from reoffending and that as the applicant has not been out in the community since the last two sentences, the chances that the Tribunal had received to refrain from reoffending were all of the previous suspended sentences and bonds he had received. The respondent submitted that as he was already incarcerated at the time of the March and October warnings, paragraph [109] was not referring to those judicial warnings. However, as with the respondent’s submission in relation to paragraph [29], this submission also provides no explanation for why this section is in the Tribunal’s reasons and, in particular, the relevance of paragraphs [25], [27] – [29] to the Tribunal’s task. Moreover, the submission is inconsistent with the terms of paragraph [109] for the reasons explained in the paragraph above.

71    As a result of the error in paragraph [29] the Tribunal’s consideration of the applicant’s application thereafter proceeded on a flawed basis. It had a cascading effect on the resolution of the issues in this case which infected the overall finding, sufficient to amount to jurisdictional error.

72    As recited at paragraph [18] above, the Tribunal considered that the protection and expectations of the Australian community weigh substantially against the considerations in the applicant’s favour, sufficient to warrant the application not being allowed. The Tribunal’s finding as to the likelihood of the applicant’s reoffending was material to its finding regarding the criteria against him. Its finding as to the likelihood of reoffending, for the reasons outlined above, was materially based on the factual error in [29], and on the Tribunal’s rejection of the applicant’s submissions and evidence, which was also based on the factual error in [29] and the adverse credibility findings which flowed from it. The ultimate conclusion was therefore infected by the factual flaw made by the Tribunal, amounting to jurisdictional error.

73    In relation to ground 2 which relates to the psychologist reports, as noted above, the Tribunal mischaracterised the content of the reports.

74    The conclusion that the reports do not directly address any of the fundamental issues before the Tribunal, involved an error in the characterisation of the reports. It was not open to the Tribunal to make that finding. It was irrational and illogical in the relevant sense.

75    This error again undercut the submission the applicant advanced to the Tribunal as to why his application should succeed. The finding also adversely affected his credibility, as it took away any consideration of the material he provided which may be seen as corroborating his submission. The error had the effect that the Tribunal failed to duly consider the question raised by the material before it and in misunderstanding the material, failed to have regard to relevant material: WAGO at [54] per Lee and R D Nicholson JJ; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [22]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [30(3)].

76    The effect of the finding is apparent in paragraphs [108] – [109] (recited at [67] above) where the Tribunal relied on a report from February 2017 from a Community Corrections Officer of the Department of Corrective Services, in reaching its conclusion regarding the risk of the applicant re-offending. Earlier in its reasons in relation to this aspect of its consideration, the Tribunal concludes at [101] – [102] (citations omitted):

101. In February 2017 a Community Corrections Officer of the Department of Corrective Services assessed Mr Singh to determine whether he would be a suitable candidate for an Intensive Corrections Order when he came before the Newtown Local Court. In her professional assessment, Mr Singh constituted a “medium/high” risk of reoffending. In oral testimony Mr Singh disputed this on the basis that this assessment was undertaken “at an early stage of my jail term’ and hence failed to take into account the lessons which he claims to have learned in jail which would mitigate against his reoffending.

102. However this finding is broadly consistent with a much earlier assessment of May 2016 prepared by a similar officer for the same court which recommended the withdrawal of the supervision component of his then bond on the basis that Mr Singh’s “response toward supervision is considered inconsistent …. and it would not appear that he is committed to the supervision and programs provided by Community Services”. This bespeaks of an attitude of unwillingness to subject himself to the degree of supervision which might militate effectively against the prospects of reoffending.

77    It should be observed that these paragraphs follow paragraph [100] (referred to above at [69]) in which the Tribunal recited authority from the High Court that past experiences may be relied on to determine future re-offending.

78    Three observations can be made about these passages.

79    First, paragraphs [101] and [102] indicate that in reciting the 2017 and 2016 reports the Tribunal is relying on these reports, and the applicant’s submission in relation to them detailed in paragraph [101], to determine the likelihood of re-offending, and that these paragraphs are material to the Tribunal’s determination in respect to re-offending.

80    Second, in addressing and rejecting the applicant’s submission that the 2017 report was undertaken “at an early stage of my jail term” and hence failing to take into account the lessons which he submitted he had learned in jail which would mitigate against his reoffending, the Tribunal relied on an earlier report from 2016 which it considered reinforced the later 2017 report. Having referred to a passage from the 2016 report, it was the Tribunal’s assessment in [102] that “[t]his bespeaks of an attitude of unwillingness to subject himself to the degree of supervision which might militate effectively against the prospects of reoffending”.

81    Third, the applicant was correct that the 2017 report did not address his later conduct. The psychologist reports, described at [47] and [48] above, support the applicant’s submission. At the very least, they directly address and are relevant to the assessment being made by the Tribunal, being the likelihood of his reoffending. They record, in particular, his goals to prevent his re-offending, his awareness of how his PTSD symptoms have contributed to his offending and how a deeper understanding of this illness has made him able to manage his emotions, his attendance at an aggression course and domestic violence abuse program, his attitude towards improving his relationships, as well as his regular attendance and engagement with psychological treatment for his condition over a number of weeks. The psychologist also recorded his risk to others as being “low”. They record a more recent report of the applicant’s attitude to re-offending than the 2017 and 2016 reports, and reflect his attitude after a period of incarceration and detention. These aspects of the reports are directly relevant to the Tribunal’s assessment in [102] that “[t]his bespeaks of an attitude of unwillingness to subject himself to the degree of supervision which might militate effectively against the prospects of reoffending”.

82    As a consequence of the Tribunal’s finding in [70], the psychologist reports are not considered in the Tribunal’s assessment of the applicant’s past experiences which is an important aspect in making its finding in relation to re-offending. Moreover, the error adversely impacted on the Tribunal’s assessment of his credibility in that the Tribunal rejected his submission that his attitude had changed, that he has learnt his lesson and taken steps to stop reoffending, at least in part, by relying on the 2016 and 2017 reports. It considered his submission (and its incredulity) as indicating that he has not in fact learnt his lesson, thereby leading, in part, to the conclusion at the end of [102] regarding his “attitude of unwillingness”. The Tribunal therefore failed to consider how and whether the reports supported the applicant’s submission, as well as their relevance to the assessment of the applicant’s likelihood of reoffending.

83    The respondent’s submission that paragraph [70] demonstrated that the Tribunal did have regard to the contents of the psychologist reports and that its treatment of the reports was therefore a question of weight, which is not a question for this Court, is not borne out by a consideration of the reasons. Although the Tribunal did briefly recite some of the contents of the reports (recited at [46] above) this does not amount to a proper consideration of the material. First, the recitation takes place in the part of the reasons in which the evidence is being recited (and some factual findings are made), prior to the Tribunal’s consideration. Second, after reciting the contents of the reports, the Tribunal mischaracterises the contents leading it to disregard the psychologist reports. The last sentence in paragraph [70] does not address the question of weight. Third, the reports are not referred to in the part of the reasons in which the Tribunal addresses the relevant considerations in Direction 65 (being the part of the reasons in which paragraphs [100] – [109] appear). Despite the Tribunal’s reference in paragraph [108] (relied on by the respondent) that it considered “all” of the evidence before it in making its finding, the fact these reports are not referred to when plainly relevant to the Tribunal’s task reflects that they were not part of its consideration, due to the error it made in [70].

84    The significance of the Tribunal’s conclusions in relation to paragraphs [101] and [102] is apparent in the Tribunal’s conclusion in paragraphs [108] – [110]. As noted above, the error in relation to failing to heed the warnings was repeated in [109] (where the Tribunal states “none of which he has taken”) and also underpins the Tribunal’s finding in [108] that the applicant poses a medium to high risk of re-offending. The error in relation to the psychologist reports is intertwined with those findings.

85    It follows that the two findings each had significant adverse consequences for the applicant.

86    It is correct, as the respondent submitted, that the Tribunal identified other aspects of the evidence which was adverse to the applicant which contributed to its conclusion. However, given the significance of the two findings as outlined above, they were material to key findings reached by the Tribunal and to its ultimate conclusion: see for example Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [94]. Jurisdictional error has been established: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30] – [31] per Kiefel CJ, Gageler and Keane JJ.

Conclusion

87    The applicant has established amended grounds 1 and 2. The decision of the Tribunal is to be set aside and the matter is to be remitted to the Tribunal for redetermination according to law.

Associate:

Dated:    11 October 2019