FEDERAL COURT OF AUSTRALIA
RZSN v Minister for Home Affairs [2019] FCA 1731
ORDERS
Applicant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
1 The applicant, a citizen of Iraq, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation under s 501(3A) of the Act of the applicant's Class BA Subclass 202 (Global Special Humanitarian) visa.
2 For the reasons below, the Tribunal did not commit any jurisdictional error in reaching its decision as alleged by the applicant. The applicant’s judicial review application is accordingly dismissed.
3 The applicant was born in Basra, Iraq in 1974. He is a Christian of Assyrian ethnicity. In about 1991, the applicant and his family fled to Syria and lived for five years or so in a refugee camp. While living in the refugee camp, the applicant married, and together they had a daughter. The applicant, together with his wife and daughter, arrived in Australia in 1996 as the holder of a Class BA Subclass 202 (Global Special Humanitarian) visa.
4 The applicant has compiled an extensive criminal record since arriving in Australia. His crimes were committed against a background of drug and alcohol abuse and were for the most part crimes of violence (including in a domestic context) and property and driving offences.
5 The applicant’s national police certificate refers to 21 court appearances over a period of 17 years. The written statement of reasons provided by the Tribunal summarised the applicant’s lengthy criminal record as follows:
29. On 23 July 1998 the Applicant was convicted in the Melbourne Magistrates Court of intentionally cause injury and recklessly cause serious injury, resulting in sentences of 3 months imprisonment for each, wholly suspended for 18 months. The offences were committed against a police officer.
30. On 14 April 1999 he faced the Melbourne County Court on charges of common law assault and criminal damage. The first charge was adjourned without conviction; he was convicted on the second charge and fined $500.
31. On 10 December 1999 he was convicted in the Broadmeadows Magistrates Court of obstruct/resist police and fined $250.
32. On 14 February 2000 in the Broadmeadows Magistrates Court he was convicted of 13 charges of obtain property by deception, and placed on a community based order for 12 months.
33. On 19 March 2002 in the Broadmeadows Magistrates Court he was convicted of behave in an offensive manner in a public place, assault police/person assisting police (2 charges), fail to answer bail and obtain property by deception and fined $1500.
34. On 18 June 2002 he was convicted in the Broadmeadows Magistrates Court of breaching a community based order and was sentenced to an aggregate 3 months imprisonment, to be served by way of an intensive corrections order.
35. On 10 February 2003 he was convicted in the Melbourne Magistrates Court of exceed/have PCA within 3 hour breath test and drive whilst disqualified. He received 3 months imprisonment on each, to be served concurrently; and his licence was cancelled and he was disqualified for 2 years.
36. On 10 September 2004 he was convicted in the Broadmeadows Magistrates Court on criminal damage, drive whilst disqualified (2 charges) and exceed prescribed concentration of blood alcohol. He was sentenced to 35 days imprisonment on each charge to be served concurrently. His licence was also cancelled and he was disqualified for 18 months.
37. On 14 December 2004, in the Melbourne County Court, he was convicted of affray and sentenced to 2 years imprisonment, intentionally cause injury for which he was sentenced to 2 years imprisonment (with 1 year 3 months concurrent) and criminal damage for which he was sentenced to 12 months imprisonment (with 9 months concurrent). The Sentencing Judge’s remarks included the following:
The incident involved a brutal and protracted display of violence orchestrated by the applicant. The applicant had harassed 2 young women at a charitable event. He then provoked a fight with the husband of 1 of the women in the car park after the end of the function. When the victim tried to escape the scene by car, the applicant pursued him and continued the attack.
38. He was described by the sentencing judge as the “principal assailant” and “ringleader” in “an ugly and vicious demonstration of fighting and violence and force”. The sentencing Judge found that the affray (and the applicant’s “leadership of it”) “was brutal and protracted and carried out with an abandon and a determination to offer violence to [the victim] and to make a display to any person who happened to be in the vicinity”.
39. In sentencing the Applicant, the Judge noted his already substantial criminal history (at that point comprising some 13 prior convictions) and held that it demonstrated a concerning disregard for Australian requirements for social conduct. The Judge noted and took into account the hardships the applicant had faced in his early life, but found that when he came to commit the offences in 2003, given his prior convictions, he would have been well aware of the risks in resorting to such behaviour.
40. On 4 March 2010, the applicant was convicted in the Broadmeadows Magistrates Court of intentionally cause injury (12 months imprisonment, concurrent and partially suspended with operational period of 18 months) and 2 charges of resist police (resulting in a community based order).
41. On 6 September 2010 he was convicted in the Broadmeadows Magistrates Court of contravening family violence intervention order and sentenced to 7 days imprisonment.
42. On 20 September 2010 he was convicted in the Melbourne County Court of 5 charges of contravening family violence intervention orders and sentenced to an aggregate 105 days imprisonment.
43. On 18 January 2011 in the Wagga Wagga Local Court, he was convicted of driving on the road when his licence was cancelled and speeding and fined and disqualified for 12 months.
44. On 11 April 2012 he was convicted of shop theft – less than $600 and fined in the Mildura Magistrates Court.
45. On 31 May 2012, he was convicted in the Broadmeadows Magistrates Court of intentionally damage property, wilful damage property, 3 charges of contravening family violence intervention orders, contravening a family violence final intervention order, and unlicensed driving. He was given a community corrections order, his licence was cancelled and he was disqualified for 12 months.
46. On 18 September 2012 he was convicted in the Ringwood Magistrates Court of recklessly causing injury (9 months imprisonment), unlawful assault (3 months cumulative) and using a carriage service to harass (fined).
47. On 2 October 2012 he was convicted in the Mildura Magistrates Court of contravening a family violence intervention order (42 days imprisonment) and possess cannabis (discharged).
48. On 5 December 2012 he was found by the Broadmeadows Magistrates Court to have contravened a community corrections order and breached his 31 May 2012 orders, and given 6 months imprisonment (suspended).
49. On 28 August 2013 in the Broadmeadows Magistrates Court he was convicted of failing to answer bail and fined $1000.
50. On 3 September 2014 he was convicted in the Broadmeadows Magistrates Court of a range of offences including unlawful assault (3 charges), contravene family violence intervention order, driving whilst disqualified (2 charges), possess amphetamines, possess controlled weapon without excuse and contravening suspended sentence orders. The Court imposed sentences of imprisonment of between 1 to 8 months.
51. On 14 August 2015, the Broadmeadows Magistrates Court convicted him of possessing a firearm as a prohibited person, contravene family violence intervention orders, and contravene suspended sentence orders. He received a sentence of 9 months imprisonment for possessing a firearm and had suspended sentences restored. The transcript of the proceeding in the Broadmeadows Magistrates Court, stated that the applicant was visited by the victim, Ms Z, with whom he had had an on-again off-again relationship. At the time, there was a family violence intervention order in place which the applicant breached by remaining at the premises with the victim. The applicant and victim smoked ice, and they remained together for a period of 2 weeks before the applicant was arrested at the premises on 24 February 2015. At that time, the victim was found hiding behind a door and said she was being held against her will. She was attended by an ambulance and taken to hospital for assessment of her injuries. Police located a handgun loaded with 14 rounds, including 1 round in the chamber so that the weapon was ready to discharge.
52. The Magistrate expressed grave concern that the Applicant’s wife had previously been the victim of domestic violence at his hands, and that the victim in this case had suffered the same fate. The Magistrate found that the Applicant’s offending was aggravated by a number of factors, including his possession (as a prohibited person) of a loaded firearm, and that the offences were committed whilst the Applicant was subject to a suspended sentence.
(Citations omitted.)
6 Throughout much of this period, the applicant was on notice of the potential implications of his offending for the maintenance of his visa. On 20 December 2005, the Department of Immigration and Multicultural Affairs (as it then was) gave the applicant notice that his visa might be cancelled under s 501 of the Act.
7 On 23 August 2006, a delegate of the Minister for Immigration and Multicultural Affairs decided not to cancel the visa, but to instead issue a formal warning. The warning noted that cancellation may be reconsidered if the applicant was to reoffend, and that the warning would weigh heavily against him in such circumstances.
8 On 1 October 2010, the Department of Immigration and Citizenship (as it then was) gave further notice to the applicant that it was considering cancelling his visa on character grounds.
9 On 15 November 2010, the applicant was notified that a decision had been made not to cancel his visa, and he was issued with another formal warning. This second warning again noted that cancellation might be reconsidered if the applicant was to reoffend and that disregard of the warning would weigh heavily against the applicant if his case was reconsidered.
10 On 27 November 2015, the applicant’s visa was cancelled under s 501(3A) of the Act. Relevantly for current purposes, that provision provides as follows:
Refusal or cancellation of visa on character grounds
…
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; 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 of a Territory.
11 On 17 December 2015, the applicant requested that the cancellation decision be revoked pursuant to s 501CA(4) of the Act. The relevant terms of s 501CA are set out below for reference:
Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
12 On 18 January 2017, the Assistant Minister for Immigration and Border Protection decided not to revoke the cancellation decision. However, this decision was subsequently quashed by the Federal Court: ALN17 v Minister for Immigration [2017] FCA 726.
13 Upon remittal, the request for revocation was considered by a delegate of the Minister for Home Affairs. On 4 December 2018, the delegate made a decision refusing to revoke the mandatory cancellation.
14 On 7 December 2018, the applicant lodged an application in the Tribunal for review of the delegate’s decision. The application for review was heard by the Tribunal on 18 and 19 February 2019.
15 On 27 February 2019, the Tribunal affirmed the delegate’s decision to not revoke the cancellation of the applicant’s Visa. The Tribunal produced a written statement of reasons for its decision: RZSN and Minister for Home Affairs (Migration) [2019] AATA 240 (AAT Reasons).
16 The central issue before the Tribunal was whether, pursuant to s 501CA(4)(b)(ii) of the Act, and by reference to 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 s501CA (Direction No. 65), there was “another reason why the cancellation of the applicant’s visa should be revoked. The applicant had conceded that he did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act.
Protection of the Australian community from criminal or other serious conduct
17 The Tribunal placed significant weight on the nature and seriousness of the applicant’s offending and the risk that he would commit further offences if released into the community: AAT Reasons at [26]-[118]. Having regard to these matters, the Tribunal held that “the primary consideration of protecting the Australian community” weighed strongly against revocation: ibid at [118].
18 The Tribunal documented at [29]-[52] the applicant’s criminal history by reference to his police records (as was extracted above at [5]). The Tribunal regarded the applicant’s offending was very serious: ibid at [56]. The Tribunal referred to (at [59]) the applicant’s repeated breaches of family violence intervention orders involving infliction of violence on two of his partners, referred to in those reasons as Ms S and Ms Z, both of whom were in vulnerable positions. The Tribunal was also concerned that the applicant had been sentenced to terms of imprisonment on multiple occasions and demonstrated a pattern of continuous offending from 1998 to 2015: ibid at [61] and [65].
19 The Tribunal found that the cumulative effect of the applicant’s offending, particularly his repeated breaches of court orders, and his failure to respond to departmental warnings and the opportunities offered to him by suspended sentences ordered by the courts, demonstrated a disregard and disrespect for the laws of Australia: ibid at [66]. This operated to heighten the risk of harm to members of the Australian community: ibid at [79].
20 The Tribunal gave careful consideration to the likelihood of the applicant re-offending. In particular, the Tribunal considered the applicant’s responsibility and remorse, the impact of his post-traumatic stress disorder (PTSD) and drug and alcohol abuse on his offending, the applicant’s participation in rehabilitation, his positive record in rehabilitation and his relationship with various family members. The Tribunal ultimately considered, however, that there remained, notwithstanding the applicant’s progress in relation to his propensity to reoffend, a significant risk that the applicant would re-offend if the cancellation of the applicant’s visa was revoked: ibid at [118].
Best interests of minor children in Australia
21 The Tribunal accepted that it was in the best interests of the applicant’s minor nephews and nieces that they have contact with the applicant but was not satisfied that any of them had a significant existing relationship with the applicant. The Tribunal gave the factor little weight for this reason: ibid at [123]-[124]. The Tribunal also gave little weight to the interests of the applicant’s child borne of his relationship with his former partner, Ms Z: ibid at [125]. In this regard, the Tribunal referred to the applicant’s evidence that he had had no contact with the child and had no future plans to make contact with the child.
Expectations of the Australian Community
22 The Tribunal found that reasonable members of the Australian community, fully appraised of the applicant’s offences, especially his crimes of violence and repeated physical abuse of his wife and former partner, would have little or no tolerance for the applicant’s repeated criminal conduct: AAT Reasons at [131]. The Tribunal held that this consideration weighed heavily in favour of not revoking the applicant’s visa cancellation: ibid at [135].
23 The Tribunal also recorded the following observations and findings:
(a) in relation to the applicant’s claims to be owed non-refoulement obligation, the Tribunal recognised that the advance of ISIL had caused significant detriment to Assyrian Christians in Iraq, but that ISIL’s defeat had resulted in improvements. The Tribunal accepted that Assyrian Christians faced ongoing harassment and discrimination but it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations: ibid at [137]-[147];
(b) the Tribunal considered the extent of impediments to the applicant if he was removed from Australia and was satisfied that he would be subject to significant hardship if returned to Iraq. The Tribunal found that this consideration weighed strongly in favour of revoking the cancellation of the applicant’s visa: ibid at [149]-[151];
(c) the Tribunal accepted that the applicant had a deep family connection with Australia, had good employment prospects in Australia and a connection with his local church community. The Tribunal found that such matters, directed at the strength, nature and duration of the applicant’s ties to Australia, weighed moderately in favour of revocation: ibid at [152]-[153];
(d) in relation to the impact of the applicant’s offending on victims, the Tribunal noted that there was evidence that the applicant’s victims had sustained physical and psychological injuries and gave this consideration significant weight against revocation: ibid at [155]-[156]; and
(e) the Tribunal accepted that a refusal to revoke the cancellation of the applicant’s visa would be disadvantageous for the applicant’s wife, four adult children, his parents and siblings and other extended family members. The Tribunal gave this consideration some weight in favour of revocation: ibid at [157].
24 The Tribunal, taking all of the considerations into account, ultimately held that the primary considerations of protecting the Australian community and the expectations of the Australian community outweighed the other considerations and favoured the exercise of its discretion under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s visa. On that basis, the Tribunal affirmed the delegate’s decision: ibid at [163]-[165].
Application for judicial review
25 The applicant applied to this Court for judicial review of the Tribunal’s decision on 1 April 2019. By his originating application, the applicant challenges the decision of the Tribunal on three grounds, which will be considered below in turn.
26 The application for judicial review was heard on 24 July 2019. In advance of the hearing, the applicant filed detailed written submissions and was represented by Mr Maloney of counsel. The Minister for Home Affairs also filed detailed written submissions and was represented by Ms Symons of counsel.
Statutory timeframes for decision-making and the construction of administrative reasons
27 Before turning to the applicant’s grounds of review, it is relevant to outline some observations about the manner in which reasons of an administrative decision-maker should be construed upon judicial review. The observations arise from a submission made on behalf of the Minister that the reasons of the Tribunal in this case should be construed in a manner that acknowledges the statutory timeframe for decision-making imposed on the Tribunal.
28 It has frequently been stated that, upon judicial review, “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287 per Neaves, French and Cooper JJ, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 66; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ. Relying on this instruction, the Full Court expressed in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [99] that “the reasons of the decision-maker must be interpreted practically and with common sense, guided by the acknowledgment of the nature and context of administrative decision-making”.
29 A statutory power is not infrequently accompanied by a duty to exercise that power within a prescribed timeframe. In the context of judicial review, such time limits provide expediency in the determination of the validity of public power. As Lord Diplock noted in O’Reilly v Mackman [1983] 2 AC 237 at 280-281:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
30 The power of the Tribunal to review a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa is constrained by, amongst other provisions, s 500(6L) of the Act. That provision provides the following:
500 Review of decision
…
(6L) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone; and
(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
31 Section 500(6L), alongside ss 500(6A) to 500(6K), was introduced into the Act by item 21 of schedule 1 of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The explanatory memorandum to the relevant bill explained the effect of these amendments as follows:
37. … These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character.
38. These amendments are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled as a consequence of:
- them being unable to satisfy a delegate of the Minister that they pass the character test; and
- there being insufficient mitigating factors for the delegate to exercise the discretion not to refuse a visa application or not to cancel a visa.
32 The design of these provisions was described as follows by the then Assistant Treasurer, the Hon Rod Kemp MP, in his second reading speech for the relevant bill:
Merits review streamlining and time limits
Where a non-citizen who is already in Australia is refused a further visa or has their visa cancelled on character grounds, it is essential that merits review cannot be used to prolong stay in Australia at taxpayers' expense. The average time currently taken for such cases at merits review is 227 days from the initial notification to a final decision. Many cases take even longer.
During this time, the non-citizens involved, many of whom have committed serious crimes, either will be in detention at great cost to the taxpayer or will be at liberty in the community. Quite frankly, this must stop. This bill introduces more streamlined procedures for dealing with such cases. It also introduces a strict 84 day time limit for the conduct of merits review cases involving character where the non-citizen is in Australia.
We will ensure that all relevant documentation necessary for the AAT to determine the matter will be provided quickly, at the outset of the process. The amendments will establish a new process where the Department will be required to provide two copies of the relevant documentation to the applicant at the time of the decision. Then, at the time the appeal is made, the applicant only has to lodge one copy of the documentation with the AAT.
The need for strict time limits is consistent with other review processes in the immigration area where delay can prejudice both the applicant and the community.
The provision will result in a more streamlined process, with the applicant, the Department and the AAT using less time and resources to obtain the necessary documentation. Currently much effort is devoted to, and delay arises in, pursuing papers and documentation from non-citizens and the Department.
The strict time limit will prevent non-citizens from further attempts to delay the resolution of their case.
33 The purposes discussed in the second reading speech were considered by French CJ, Kiefel, Bell and Keane JJ in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [58]-[59] in the course of considering the application of s 500(6H) of the Act.
34 Section 500(6L) was itself the subject of consideration by the Full Court in Somba v Minister for Home Affairs [2019] FCAFC 150. Consistent with the extrinsic material outlined above, the Full Court observed at [40] that “[t]he short, nine day time limit for instituting an application for review under s 500(6B) and the 84 day time limit in s 500(6L) itself evince a policy to truncate strictly the time that is taken for the Tribunal to review decisions to which s 500 applies. And, previously, in NZA v Minister for Immigration and Citizenship [2013] FCA 140; 140 ALD 555 at [144]-[145], Kenny J held that the time constraint imposed by s 500(6L) must be borne in mind in considering what procedural fairness requires of the Tribunal in the circumstances of each case. See also Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 at [52] per Ryan, Bennett and Edmonds JJ.
35 Likewise, the analysis and construction of the reasons for a decision to which the time limit in s 500(6L) applies should be performed with an appreciation of the purpose and operation of that provision. It may be that, depending on the volume of material and the nature of the decision to be made, the Tribunal will not have the time it would consider optimal to fully critique and synthesise the relevant matters of fact and law to be determined. In these circumstances, the expression of the Tribunal’s reasons should not be held to a standard of perfection. A degree of practicality is warranted.
36 These considerations apply in this case. The decision of the Minister’s delegate to not revoke the cancellation of the applicant’s visa was made on 4 December 2018. The applicant was notified of this decision on 5 December 2019. The applicant promptly lodged an application in the Tribunal for review of the delegate’s decision on 7 December 2018. The “Applicant’s Statement of Facts, Issues and Contentions” was prepared on 24 January 2019. The “Statement of Facts and Contentions of the Respondent” was prepared on 11 February 2019. The hearing in the Tribunal was held on 18 and 19 February 2019.
37 The Tribunal was thus required within a short time-frame to consider the written submissions and evidence filed by the parties, conduct a two day hearing involving the examination of various witnesses, consider all these matters against the complex background of the Act and Direction No. 65, and publish its decision and reasons for decision. The Tribunal’s decision was made on 27 February 2019, 84 days after the day on which the applicant was notified of the delegate’s decision.
38 Consistent with the principle stated by the Full Court in Navoto, it is necessary to interpret the reasons given by the Tribunal in this case practically and with common sense, guided by an acknowledgment of the nature and context of administrative decision-making, including, in this case, the circumstances imposed by the time limit in s 500(6L) of the Act.
Ground (1) – Impact on victims
39 The applicant’s first ground of review contended the following:
The Tribunal’s decision is affected by jurisdictional error in that, in purporting to consider the impact of a decision not to revoke the mandatory cancellation of the Applicant’s visa upon the victims of the Applicant’s offending, the Tribunal failed to comply with a binding direction issued by the Minister under s 499 of the Migration Act 1958 (Cth) (Act), being ‘Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA’ (Direction No 65); or otherwise failed to exercise the discretion or carry out the statutory task in s 501CA(4) of the Act according to law, and/or to afford the Applicant procedural fairness.
40 The following particulars were set out in the applicant’s originating application in support of the first ground:
The Tribunal purported to take into consideration the ‘Impact on victims’ of any decision not to revoke the mandatory cancellation of the Applicant’s visa, which is not of the ‘Other considerations’ which the Tribunal must take into account where relevant (see Direction No 65, [14], [14.4]; RZSN and Minister for Home Affairs (Migration) [2019] AAT 240, [155]). However:
a) Neither the Applicant not the First Respondent contended that this was a relevant consideration in the circumstances of this case. The Tribunal did not indicate that would have regard to this consideration. The Direction (at [14.4]) provides that the Tribunal would have regard to this consideration. The Direction (at [14.4]) provides that the Tribunal may have regard to this consideration only where the Applicant has been afforded procedural fairness (and the Tribunal was required to afford the Applicant procedural fairness in any event). The Applicant was not afforded procedural fairness.
b) The Tribunal misconstrued this consideration or asked itself the wrong question. Direction No 65 at [14.4] provides that the Tribunal may have regard to the impact of a decision not to revoke on members of the Australian community, including victims of a non-citizen’s offending. Instead, the Tribunal considered the impact of the Applicant’s past offending on some of the victims of that offending.
c) In purporting to have regard to this consideration, the Tribunal failed to have regard to the evidence and submissions of the Applicant, and its own findings, as to the negative impact of non-revocation on the Applicant’s wife (who was a victim of his offending), and his wife’s family (including their four daughters).
41 As is evident, the applicant’s originating application provided detailed particulars to support each ground of review. These reasons consider each ground by reference to the particulars set out by the applicant in his originating application.
Particular 1(a) – Procedural fairness
42 The applicant first argued that the Tribunal failed to afford him procedural fairness by failing to give notice that it would consider the “impact on victims” as part of its balancing exercise under s 501CA(4) of the Act. The applicant contended that, as a result of the Tribunal’s failure to put the applicant on notice, the applicant was denied the opportunity to, for example:
(a) adduce evidence from his wife and daughters about this issue;
(b) adduce evidence from or about the other two victims of his offending about this issue;
(c) adduce evidence from the authors of the police reports on which the Tribunal evidently relied about the contents of the reports; or
(d) make submissions as to the weight which should be given to these reports.
43 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), the Full Court, comprised of Northrop, Miles and French JJ, expressed the following 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. …
44 This passage was considered by a subsequent Full Court in Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 (Milne). In that case, Ryan, Bennett and Edmonds JJ observed the following at [53]-[54]:
The obligation on a tribunal or other decision-maker to expose to a party material which may be influential in the making of the ultimate decision is not unlimited. It does not extend to reminding the party of information which has been disclosed as part of the party’s own case or in prior, relevant, statements of the party such as a declaration in support of an application for a visa. Thus, in Alphaone, the Full Court … stressed that the entitlement of a party to rebut or qualify material by further information or comment on it by way of submission exists in respect of “adverse material from other sources” (emphasis added). As we understand it, the words which we have emphasised refer to information from sources not under the control of the party claiming the entitlement. …
Another aspect of the obligation to expose an issue to a party arises where the issue is not apparent from the nature of the decision entrusted to the decision-maker “or the terms of the statute under which it is made”; see the passage from Alphaone …. In our view, the reference in that passage to “the statute” under which the decision is made extends beyond the four corners of the governing Act to subordinate or delegated legislative instruments like Ministerial Direction No 21 which was applicable to the decision in the present case.
45 In Milne, the Full Court held at [54] that it was apparent from the ministerial direction relevant in that case that the decision-maker was required to have regard to “the likelihood that the conduct may be repeated (including any risk of recidivism)”. The decision-maker was consequently not obliged to separately give notice of the relevance of that issue to the appellant in that case: ibid at [55].
46 A similar example is the decision of McKerracher J in Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 (Rodchompoo). The Tribunal in that case, in the course of deciding whether to revoke a mandatory visa cancellation, expressed the following at [60] of its decision:
There is no evidence before the Tribunal of the impact on any victims. However, given that Mr Rodchompoo has a history of convictions for supplying drugs in Australia his removal from Australia would diminish the harm which flows from such conduct.
47 The applicant in that case—Mr Rodchompoo—argued, inter alia, that he made not been afforded procedural fairness for the purposes of cl 14.4(1) of Direction No. 65. However, McKerracher J held that, although there was no specific evidence provided by the victims of Mr Rodchompoo’s offending, the Tribunal’s statement was open on the evidence before it and that Mr Rodchompoo was on notice of the nature of the evidence: ibid at [102]. Although his Honour did not refer in his reasons to Alphaone or Milne, it is clear that McKerracher J considered that the material before the Tribunal permitted it to reach conclusions in relation to the impact on victims:
97 … It is true that there was no specific victim evidence, but the general finding made by the Tribunal (at [60]) was certainly a topic on which Mr Rodchompoo was squarely given notice. It is not true to say that there was no history of possession of drugs with intent to sell. There was a plea of guilty in relation to such an offence and there was, accordingly, ‘history’. The general observation that the community would be better off without people selling drugs to it can hardly be the topic of complaint. Not only was that view open to the Tribunal, but it was also available on the evidence in the form of sentencing remarks.
…
99 Even Mr Rodchompoo, himself, provided evidence on this topic in a letter to the Department where Mr Rodchompoo said ‘I was using drug [sic] and alcohol. I then selling drug [sic] to support my habit but that did not last long’. In one of the few pieces of information he put before the Tribunal, there was an admission of sale of drugs to support his habit. …
48 There are parallels between Milne and Rodchompoo and this case. In this case, the notice of visa cancellation under s 501(3A) of the Act enclosed a copy of Direction No. 65 and informed the applicant that “if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction [No.] 65”. The notice otherwise stated that the applicant “should address each paragraph in PART C of the Direction that are relevant to your circumstances” (emphasis in original). The terms of Direction No. 65 expressly directs attention to the consideration of the “impact on victims”.
49 The delegate’s statement of reasons for the non-revocation of the applicant’s visa cancellation acknowledged at [11]-[12] that the delegate was bound by Direction No. 65, and proceeded to consider the applicant’s request for revocation by reference to the considerations set out in that instrument. This included consideration at [87]-[89] of the “impact on victims”.
50 The applicant subsequently applied to the Tribunal for a review of the merits of the delegate’s decision. The applicant was legally represented at this time. It would have been clear, or should have been clear, to his representatives that Direction No. 65 was also applicable to decisions of the Tribunal: see Direction No. 65, Annex B, definition of “decision-maker”.
51 Moreover, similar to Rodchompoo at [97]-[98], the Tribunal in this case had before it certain sentencing remarks in relation to the applicant’s previous offending. It also had before it various police reports documenting the impact of the applicant’s behaviour. Indeed, the applicant was questioned during the Tribunal hearing about aspects of his offending that involved violence against his former girlfriend and his wife partly by reference to these police reports.
52 In the circumstances of the material before the Tribunal, my view, based on the principles in Alphaone and Milne, and exemplified in Rodchompoo, is that the applicant was squarely put on notice that an issue for consideration by the decision-maker in determining his request for revocation would be the impact on victims of a decision not to revoke the cancellation of his visa. The Tribunal accordingly did not fail to afford the applicant procedural fairness for the purposes of paragraph 14.4(1) of Direction No. 65.
Particulars 1(b) and (c) – “Impact on victims” and the applicant’s family
53 The next aspect of the applicant’s first ground of review was the contention that the Tribunal misconstrued paragraph 14.4(1) of Direction No. 65, or otherwise failed to have regard to the evidence and submissions provided by, or on behalf of the applicant, or the Tribunal’s own findings, as to the negative impact of non-revocation on the applicant’s family.
54 Paragraph 14(1) of Direction No. 65 directs a decision-maker under s 501CA(4) to take into account various “other considerations”, including the “[i]impact on victims”. Paragraph 14.4(1) of Direction No. 65 informs the nature of this consideration:
14.4 Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
55 The Tribunal analysed the relevance of this consideration in [155]-[156] of its reasons:
Impact on victims
155. There was evidence contained in police reports of the impact of the Applicant’s violent behaviour, particularly on his wife Ms S and Ms Z. The physical injuries and psychological effects suffered by both women were significant. In sentencing the Applicant in December 2004, the court noted that the victim of the assault by the Applicant in that case had, in addition to significant physical injuries, also been required to visit a psychologist on 20 occasions to deal with symptoms of anxiety and depression, panic attacks, hypervigilance and difficulty sleeping and breathing.
156. The Tribunal gives this consideration significant weight against revocation.
(Citations omitted.)
56 As counsel for the Minister conceded, the emphasis of the Tribunal’s consideration of the “impact on victims” in [155] of its reasons does not directly align with the wording of paragraph 14.4(1) of Direction No. 65. That paragraph required the Tribunal to consider the impact on the victims of a decision not to revoke the applicant’s visa cancellation. However, the Tribunal instead outlined the impact on the victims of the applicant’s offending.
57 If the Court were to consider these passages in isolation, without regard to the balance of Direction No. 65, and without regard to the balance of the Tribunal’s reasons, these matters may be sufficient to evidence a misconstruction of paragraph 14.4(1) of Direction No. 65 by the Tribunal. However, that is not the manner in which this Court should construe Direction No. 65, nor the Tribunal’s reasons.
58 As a starting point, it may be accepted that a decision-maker to which Direction No. 65 relates—in this case, the Tribunal—is required to comply with the terms of that direction: s 499(2A) of the Act; BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. But Direction No. 65 must not supplant the ultimate statutory task: see s 499(2) of the Act. The ultimate question for the Tribunal in this case was whether it was satisfied that there was another reason why the original decision to cancel the visa should be revoked.
59 Moreover, although Direction No. 65 non-exhaustively prescribes certain considerations to which the decision-maker must have regard, there is no requirement for the decision-maker’s reasons to religiously adhere to the structure of those considerations as set out in that instrument. What matters is whether the decision-maker complied with its statutory obligation to consider those matters, to the extent they are not inconsistent with the Act or relevant regulations, in reaching its decision, not whether the structure of the decision-maker’s reasons aligned with the structure of Direction No. 65.
60 Relatedly, the fact that such a decision-maker does not refer to a consideration prescribed by Direction No. 65 in the precise compartmentalised sequence of headings set out in that instrument is not determinative of whether the decision-maker has lawfully considered, construed and applied that consideration. Although it will frequently be convenient, and indeed desirable, for the decision-maker’s reasons to reflect the headings and sub-headings in Direction No. 65, the failure to consider a relevant matter under its allotted heading is not fatal to the valid exercise of the decision-maker’s jurisdiction. The question whether the decision-maker has lawfully considered, construed and applied such a consideration is a matter to be inferred from the decision-maker’s reasons as a whole. The existence and content of headings in the decision-maker’s reasons will be relevant, but they will not be determinative.
61 On the basis of these principles, my view is that, for the following reasons, the Tribunal’s reasons—and in particular [155]—do not evidence jurisdictional error by the Tribunal in the manner contended by the applicant.
62 First, consideration by the Tribunal of the impact of offending on victims cannot be said to be irrelevant for the purposes of the balancing exercise under s 501CA(4)(b)(ii). There is nothing in the subject-matter, scope and purpose of this provision, and the Act as a whole, that would prohibit consideration of the impact of a non-citizen’s offending on victims: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J. On the contrary, the impact of a non-citizen’s offending while holding an Australian visa is a matter that would naturally be expected to be considered in the course of a decision whether or not to revoke a visa cancellation. Indeed, to refer back to Direction No. 65, such a consideration is at least implicitly relevant to determining the nature and seriousness of the non-citizen’s past conduct, being a primary consideration under that instrument. Or, alternatively, the consideration of the impact on victims may fall within the “other considerations” to which a decision-maker must have regard, which, according to paragraph 14(1) of Direction No. 65, are non-exhaustive.
63 Second, although the Tribunal did not consider the impact of a decision not to revoke the applicant’s visa cancellation on the victims of his offending under the hearing “Impact on victims”, the Tribunal did consider these matters elsewhere in its reasons. In this regard, it must be recalled that the applicant’s wife was one of the victims of the applicant’s offending. The applicant’s daughters had also witnessed this violent offending. It is clear from various aspects of the AAT Reasons that the Tribunal did have regard to the impact of a decision not to revoke on these family members.
64 At [101]-[107] of the AAT Reasons, the Tribunal made various findings of fact about the relationships between the applicant and his family. Although the Tribunal did not specifically address here the impact of a decision not to revoke on the family members, the Tribunal found, relevantly, that “the family genuinely support the Applicant and that they will do their best to support him if he is released into the community”. The Tribunal moreover noted that the applicant’s wife “would accept the Applicant into her home to live with her and her daughters if he is released” and that the applicant’s daughters “said they had a close relationship with the Applicant and kept up regular contact notwithstanding his incarceration”.
65 Subsequently, at [134], under the heading “Expectations of the Australian Community”, the Tribunal accepted that “fair-minded Australians would also be sympathetic to the position of the Applicant’s daughters and other members of his family”.
66 Then, at [157], under the heading “Impact on family members”, the Tribunal expressed the following:
Impact on family members
157. The interests of family are not a primary consideration under the Direction. However, the Tribunal accepts that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for the Applicant’s wife Ms S, his four adult children, his parents and siblings and other members of his family. The Tribunal gives this consideration some weight in favour of revocation.
67 This passage, although falling under a different heading, clearly corresponds to the form of consideration to which paragraph 14.4(1)—under the heading “Impact on victims”—is directed. It just happens that in this case some of the primary victims of the applicant’s offending were his own family.
68 Similar circumstances were considered by Tracey J in Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 (Hodgson). The fourth ground of review advanced by the applicant in that case, Mr Hodgson, was that the decision-maker in that case, the Assistant Minister, had failed to have regard to government policy—in the form of Direction No. 65—in refusing to revoke a visa cancellation. Tracey J held that it was unnecessary to determine the ground in the form advanced by the applicant because his Honour was of the view that “the Assistant Minister did have regard to the matters referred to in Clause 14.4 [of Direction No. 65] to the extent to which they were relied on by Mr Hodgson and even though the Assistant Minister did not expressly refer to that part of Direction [No.] 65 in his reasons” (emphasis added): ibid at [36]. Tracey J continued as follows at [40]:
In his reasons the Assistant Minister had regard to the adverse impact which the deportation of Mr Hodgson would have on his family and friends in the Australian community. At [77] of his reasons, the Assistant Minister summarised these considerations as “the hardship Mr Hodgson, his family and social networks will endure in the event the original decision is not revoked.” Mr Hodgson’s partner was a victim of his criminal behaviour. The others whom he claimed would suffer, were he to be deported, were members of the Australian community. The impact of an adverse decision on these people was a matter which the Assistant Minister was entitled to and did consider. This was a relevant matter under Clause 14.4 and other provisions of Direction 65. …
(Emphasis added.)
69 Accordingly, even though the Assistant Minister in Hodgson did not expressly refer to paragraph 14.4 of Direction No. 65 or the “impact on victims”, the Assistant Minister had, in the view of Tracey J, nonetheless considered that factor in the course of contemplating the impact of non-revocation on Mr Hodgson’s partner, who, like Ms S in this case, was also a victim of the applicant’s criminal behaviour.
70 Returning to this case, and to conclude, my view is that the manner in which the Tribunal addressed the applicant’s representations, although not perfectly aligning with the structured dictates of Direction No. 65, did not impugn the valid exercise of the Tribunal’s jurisdiction. Having read the reasons of the Tribunal as a whole, it cannot be concluded that the Tribunal failed to comply with Direction No. 65 as alleged. Although [155] of the AAT Reasons, considered in isolation, displays a misconstruction of paragraph 14.4(1) of Direction No. 65, when the balance of the Tribunal’s reasons are properly examined, my view is that the validity of the Tribunal’s exercise of jurisdiction was not affected by that misconstruction.
71 For these reasons, the first ground of review raised by the applicant must be dismissed.
Ground (2) – Australia’s international non-refoulement obligations
72 The applicant’s second ground of review contended the following:
The Tribunal’s decision is affected by jurisdictional error in that, in purporting to assess Australia’s international non-refoulement obligations, the Tribunal failed to comply with Direction No 65 or otherwise failed to exercise the discretion or carry out the statutory task in s 501CA(4) of the Act according to law, and/or to afford the Applicant procedural fairness.
73 The following particulars were set out in the applicant’s originating application in support of the second ground:
The Tribunal purported to take into consideration ‘International non-refoulement obligations’, which is one of the ‘Other considerations’ which must be taken into account where relevant (see Direction No 65, [14.1]). However:
a) The Tribunal failed to have regard to the evidence and submissions of the Applicant, and to its own findings, about the consequences of the Applicant’s forced return to Iraq. In particular:
i. In considering matters other than Australia’s non-refoulement obligations, the Tribunal found that as an Assyrian Christian, the Applicant may face violence in Iraq; that he had no family support in Iraq; that he would likely face difficulty obtaining employment in Iraq; that his return to Iraq would likely precipitate a profound deterioration in his mental health (see, e.g., [148]-[151]; [158]-[159]). However, the Tribunal failed to consider the relevance of these harms to Australia’s non-refoulement obligations.
ii. In considering Australia’s non-refoulement obligations, the Tribunal accepted that the Applicant was an Assyrian Christian, and that country information established that Assyrian Christians face an ongoing risk of persecution and violence in Iraq: [145]. However, the Tribunal subsequently found that the Applicant has not provided evidence to establish that he would face harm in Iraq beyond ‘harassment and discrimination’: [147]. That finding demonstrates that the Tribunal misapprehended, or constructively failed to consider the evidence before it. Further, in reaching that finding, the Tribunal conflated or otherwise misunderstood significant harm and persecution under the Refugees Convention.
b) The Tribunal understood its tasks, in assessing Australia’s non-refoulement obligations, to be the assessment of whether the applicant faced a real chance or risk of serious or significant harm pursuant to s 36 of the Act: [141]-[142]. However, the Tribunal’s task under [14.1] of Direction No 65 was in fact different from the statutory task which falls to decision-makers in deciding whether to grant a protection visa to an applicant, pursuant to ss 36 and 65 of the Act: see, e.g., BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96, [48]-[49]; [96] (per Bromberg and Mortimer JJ). Accordingly, the Tribunal misconstrued or failed to perform its task.
c) Notwithstanding b) above, the Tribunal’s reasons (in particular, at [141]-[142], [147]) indicate that it conflated or otherwise misunderstood the requirements of ss 36(2)(a) and 36(2)(aa) of the Act.
74 As is clear from these particulars, the applicant contended that the Tribunal erred in various ways in the manner in which it addressed (or failed to adequately address) any international non-refoulement obligations owed to the applicant, being an “other consideration” specified in paragraphs 14(1)(a) and 14.1(1) of Direction No. 65. Paragraph 14.1(1) explains the nature of those obligations for the purposes of the direction:
14.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport of expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (the CAT); and the International Covenant on Civil and Political Rights and is Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
75 “Australia’s interpretation of these obligations”, to borrow the wording of this paragraph, is principally set out in s 36 of the Act, which, for reference, provides the following:
Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
76 The relevant paragraphs of the Tribunal’s reasons to consider Australia’s “international non-refoulement obligations”, were as follows:
International non-refoulement obligations
…
138. In this case it is open to the Applicant to apply for a protection visa if the mandatory cancellation of his Class BA Subclass 202 (Global Special Humanitarian) visa is not revoked. However, notwithstanding Paragraph 14.1(4) of the Direction, where, as in this case, a person affected by a mandatory cancellation raises, as a reason in favour of revocation of the visa cancellation, a fear of harm in their country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country. In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.
…
141. In this case the Tribunal is required to assess whether the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iraq, there is a real risk that the Applicant will suffer ‘significant harm’ as defined in s.36(2A) of the Act, which means to be arbitrarily deprived of life, subject to a death penalty, subjected to torture, cruel or inhuman treatment or punishment or subject to degrading treatment or punishment.
142. Paragraph 36(2B)(c) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Accordingly, the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant.
…
145. The Tribunal has had regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Iraq dated 9 October 2018. It notes that:
…
e. ISIL subjected Christians to high levels of violence and discrimination in areas under its control [3.25] but some Christians have been returning to areas previously held by ISIL since their defeat in various areas [3.26];
f. DFAT assesses that Christians in Iraq face low levels of official discrimination, but moderate levels of societal discrimination and violence similar to that faced by other minority religious communities [3.27];
…
147. The Tribunal is satisfied on the basis of the evidence presented by the parties that currently regions of Iraq continue to have significant security concerns and Assyrian Christians in Iraq continue to be the subject of harassment and discrimination on the basis of their ethnicity and religion. However, the Tribunal was not referred to evidence that would lead to the conclusion that the violence and persecution suffered under ISIL continues to apply, and significantly the evidence did not establish that there is currently a real risk that the Applicant would suffer the type of significant harm defined in s.36(2A) of the Act if he were to return to Iraq. Further, the Applicant has not established on evidence that his particular and personal circumstances are such that he will face the risk of significant harm. On this basis the Tribunal is not satisfied, for the purpose of the current application, that the Applicant is a person to whom Australia would owe an international non-refoulement obligation within the meaning in paragraph 14.1 of the Direction.
(Citations omitted.)
Particular (2)(b) – Misapprehension of statutory task
77 It is convenient to start with particular (b) provided in the originating application to support the applicant’s second ground of review. That particular contended that the Tribunal misunderstood its statutory task as being an assessment of whether it was satisfied that the applicant faced a real chance or risk of serious or significant harm as if considering a protection visa application, rather than adhering to the proper balancing exercise under s 501CA(4)(b)(ii).
78 I considered the distinction between these statutory tasks, by reference to the majority’s judgment in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16), in GBV18 v Minister for Home Affairs [2019] FCA 1132 (GBV18) at [63]:
The appropriate and fundamental starting point to explain the appropriate approach to s 501CA(4) is to highlight that the consideration of non-refoulement obligations in exercising a discretion under s 501CA(4) is not to be equated with the manner in which those obligations are relevant in the course of the determination of a protection visa application under s 65. They are different statutory tasks, as explained by the majority in BCR16—Bromberg and Mortimer JJ—at [48]-[49]:
… the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant … (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the [decision-maker]. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
See also [Omar v Minister for Home Affairs [2019] FCA 279] at [45] per Mortimer J and [DOB18 v Minister for Home Affairs [2019] FCAFC 63] at [63] per Logan J.
79 The applicant pointed to the following aspects of the Tribunal’s reasons to demonstrate the Tribunal’s misunderstanding of the relevant statutory task:
(a) [141] of the AAT Reasons, where the Tribunal expressed that “[i]n this case” the Tribunal was required to assess the criteria referred to in ss 36(2)(a) and 36(2)(aa) of the Act;
(b) [142] of the AAT Reasons, which paraphrased s 36(2B)(c) of the Act; and
(c) [147] of the AAT Reasons, where the Tribunal concluded that it was “not satisfied … that the Applicant is a person to whom Australia would owe an international non-refoulement obligation”. The applicant argued that the two references to the Tribunal’s state of satisfaction in this paragraph consolidated the inference that it had understood its task as being identical to the task to be performed under s 65 of the Act.
80 In my view, these features, considered in light of the Tribunal’s reasons as a whole, do not establish that the Tribunal failed to appreciate the task conferred on it by s 501CA(4). This is so for the following three reasons.
81 First, the Tribunal’s analysis of Australia’s international non-refoulement obligations should not be considered in isolation. Regard should be given to the role of that analysis in the context of the Tribunal’s reasons as a whole.
82 The Tribunal’s reasons were structured consistently with the considerations set out in Direction No. 65, which also included, broadly, the protection of the Australian community, the best interests of the applicant’s minor children, the expectations of the Australian community, the strength, nature and duration of the applicant’s ties to Australia, the impact on Australian business interests, the impact on victims and extent of any impediments to the applicant if removed to Iraq. The Tribunal’s analysis of all the relevant considerations extended from [26]-[159] of its reasons. Australia’s international non-refoulement obligations were but one consideration.
83 In concluding its decision, the Tribunal recognised that the outcome of the decision rested on a balancing of the various considerations. The Tribunal at [160] quoted the requirement expressed in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 538 at [38] per North ACJ that s 501CA(4)(b)(ii) required the decision-maker “to examine the factors for and against revoking the cancellation”. And, at [163], the Tribunal expressed that it had taken “all of the considerations into account” in reaching its decision.
84 Second, notwithstanding the features of the Tribunal’s reasons highlighted by the applicant, other aspects of the Tribunal’s consideration of Australia’s international non-refoulement obligations suggest the Tribunal appreciated the difference in statutory tasks between s 65 and s 501CA(4). At [138], the Tribunal acknowledged, in respect of its consideration of those obligations, that “[t]he level of analysis required [in this case] is less than that would be required in assessing a claim for a protection visa”. And, in its concluding its consideration of the non-refoulement obligations at [147], the Tribunal stated that its non-satisfaction that the applicant was a person to whom Australia would owe an international non-refoulement obligation was only “for the purposes of the current application”.
85 Third, the Tribunal’s analysis conforms with the directions in paragraph 14(1)(a) and 14.1 of Direction No. 65. Paragraph 14(1)(a) requires that, in deciding whether to revoke the mandatory cancellation of a visa, the Tribunal should take into account “International non-refoulement obligations”. Paragraph 14.1 notes the international instruments constituting the source of these obligations, but then expresses that “[t]he Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act”. Accordingly, as I explained in GBV18 at [127], the proper focus for the Tribunal is the terms of the Act:
When Direction No. 65 referred to consideration of non-refoulement obligations, it was instructing the decision-maker to consider, not the obligations owed in international law by Australia, but the obligations that the Commonwealth Parliament has given effect to under the Act. This is clear from the instruction by Direction No. 65 that “[t]he Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act”. The same instruction is evident in other aspects of Direction No. 65: see paragraphs 10.1(1) and 12.1(1). Although the second sentence of paragraph 14.1(1), and these other paragraphs, make particular reference to the Refugee Convention, the ICCPR and the CAT, this is merely to explain the original source of Australia’s obligations. The key instruction in paragraph 14.1(1) is its final sentence: the “decision-makers should follow the tests enunciated in the Act”.
86 The Tribunal’s reference to, and consideration of, the tests under ss 36(2)(a) and 36(2)(aa) of the Act is consistent with this direction. For the Tribunal to have expressed at [147] that it was not “satisfied” that Australia would owe the applicant international non-refoulement obligations does not necessarily entail that the Tribunal slavishly followed the test for satisfaction under s 65 of the Act as if considering a protection visa application. The Tribunal was merely expressing, compliant with Direction No. 65, that it was not persuaded that “Australia would owe an international non-refoulement obligation within the meaning in paragraph 14.1 of the Direction”.
Particular (2)(c) – Misapplication of protection criteria
87 The applicant next argued that, even if the Tribunal did not misunderstand its statutory task, it nevertheless misapplied the requirements of ss 36(2)(a) and 36(2)(aa) of the Act. The Tribunal did so, according to the applicant, because its reasons indicate that it understood the requirements of those two criterion as cumulative, rather than as alternatives, and that it considered the qualification in s 36(2B)(c) of the Act to apply to both the refugee criteria and the complementary protection criteria (when it only applies to the latter).
88 These errors were evident, in the submission of the applicant, from the following aspects of the Tribunal’s reasons:
(a) [141] of the AAT Reasons, where the Tribunal relevantly expressed (with emphasis added in underline) that it was “required to assess whether the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iraq, there is a real risk that the Applicant will suffer ‘significant harm’”;
(b) [142] of the AAT Reasons, which paraphrases s 36(2B)(c) of the Act in a manner without indicating that it applied only to the complimentary protection criterion; and
(c) [147] of the AAT Reasons, which the applicant argued gave no distinct consideration to whether the applicant faced a real chance of serious harm, being the test under the refugee criterion, as opposed to a real risk of significant harm, being the broad test under the complimentary protection criterion.
89 In relation to the first aspect, the criteria in ss 36(2)(a) and 36(2)(aa) are distinct and only one of those criteria need be satisfied: s 36(1A)(b) of the Act. It would have been preferable for the Tribunal, for the purposes of avoiding any doubt, to replace the word “and” in [141] of its reasons with “or” in order to precisely reflect the statutory test. However, the failure to do so does not necessarily mean the Tribunal viewed the criteria as cumulative. In my view, the better interpretation is that the Tribunal was simply summarising the ambit of matters for potential consideration.
90 In relation to the second aspect, it is correct that the broad terms of the second sentence of [142]—that “the assessment of non-refoulement claims rests heavily on the particularly and personal circumstances of an applicant”—could be viewed as misleading in circumstances where this was said to “accordingly” follow from s 36(2B)(c). This is because s 36(2B)(c) only applies in respect of complimentary protection claims, not all “non-refoulement claims”. However, my view is that this aspect of the Tribunal’s reasons, read with the other paragraphs relating to Australia’s non-refoulement obligations, does not establish that the Tribunal had conflated both criteria in a manner that infected the exercise of its jurisdiction. It may be observed that the ultimate observation to arise from [142] is correct under both refugee claims and complementary protection claims: for refugee claims, see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [22] per Allsop CJ and Katzmann J.
91 Finally, in relation to the third aspect of the Tribunal’s reasons identified by the applicant, my view is that, contrary to the submission of the applicant, the Tribunal did consider both the refugee criterion and complimentary protection criterion and found that neither would be satisfied. To explain, it is necessary to dissect [147] of the Tribunal’s reasons into the following sentences:
[Sentence 1] The Tribunal is satisfied on the basis of the evidence presented by the parties that currently regions of Iraq continue to have significant security concerns and Assyrian Christians in Iraq continue to be the subject of harassment and discrimination on the basis of their ethnicity and religion. [Sentence 2a] However, the Tribunal was not referred to evidence that would lead to the conclusion that the violence and persecution suffered under ISIL continues to apply, [Sentence 2b] and significantly the evidence did not establish that there is currently a real risk that the Applicant would suffer the type of significant harm defined in s.36(2A) of the Act if he were to return to Iraq. [Sentence 3] Further, the Applicant has not established on evidence that his particular and personal circumstances are such that he will face the risk of significant harm. [Sentence 4] On this basis the Tribunal is not satisfied, for the purpose of the current application, that the Applicant is a person to whom Australia would owe an international non-refoulement obligation within the meaning in paragraph 14.1 of the Direction.
92 The applicant focussed on the consecutive sequence of sentences 2b and 3 of [147], both of which invoke concepts relevant to complementary protection claims, to demonstrate that the Tribunal had failed to give distinct consideration to the refugee criterion under s 36(2)(a). It appears that the applicant’s emphasis on these sentences were based on the construction that the word “further” at the start of sentence 3 was intended to denote a transition in conceptual focus, but that sentence 3 nevertheless continued to centre on the risk of significant harm to the applicant.
93 In my view, the better reading of [147] is that both sentence 1 (referring to, inter alia, harassment and discrimination on the basis of ethnicity and religion) and sentence 2a (referring to potential persecution) considered the refugee criterion, and that sentences 2b and 3 (both referring to risks of significant harm) considered the complimentary protection criterion. Sentence 4 then concluded in respect of both criteria.
94 To avoid ambiguity, it would have been preferable for the Tribunal to have split sentences 2a and 2b in order to clearly maintain the conceptual distinction between the different statutory criteria. It may also be accepted that the expression of the Tribunal’s conclusions in respect of both criteria were concise. However, as I explained in GBV18 at [116], the Tribunal was not required in this statutory context to descend into great detail:
Given that paragraph 14.1(1) of Direction No. 65 specifically directed the Tribunal to the tests for Australia’s non-refoulement obligations under the Act, it would have been preferable for the Tribunal to have referred to, and distinguished between, such criteria under the Act with greater clarity in its reasons. But it must be recalled that, in this context, Australia’s international non-refoulement obligations is but one factor amongst many affecting the Tribunal’s decision. And, moreover, the precision required of the Tribunal’s reasons in distinguishing between the components of Australia’s international non-refoulement obligations expressed under the Act is not the same as would be expected in determining the application for a protection visa: [Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513] at [28] per Flick, Griffiths and Perry JJ.
95 For these reasons, my view is that the Tribunal did not conflate or misapply the criteria for protection under ss 36(2)(a) and 36(2)(aa) of the Act.
Particular (2)(a) – Failure to have regard to relevant evidence, submissions and findings
96 To return to the first particular provided by the originating application under the banner of the second ground of review, the applicant argued that the Tribunal failed to have regard to the evidence and submissions of the applicant, and to the Tribunal’s own findings, about the consequences of the applicant’s forced return to Iraq.
97 The applicant first pointed to various matters that the Tribunal had considered in the section of its reasons focussing on considerations other than Australia’s international non-refoulement obligations. Under the heading “Extent of impediments if removed”, the Tribunal had relevantly found (at [149]-[150]) that:
(a) “He has no family support in Iraq and does not speak the majority language”;
(b) “He is likely to have difficulty obtaining employment”;
(c) “As an Assyrian Christian, he is vulnerable to societal discrimination and possibly violence”;
(d) “his forced relocation to Iraq can be expected to have a significant adverse effect on his mental health”;
(e) “he would have very diminished opportunities for access to counselling and other mental health services”; and
(f) expert evidence indicated that “the Applicant’s prospects if he were forced to return to Iraq were dire and it is highly likely that his psychological condition would deteriorate profoundly and he would be at risk of harm in a number of respects”.
98 Furthermore, under the heading “Other considerations”, the Tribunal relevantly found (at [158]-[159]) that:
(a) “there is the prospect that the Applicant will be required to remain in detention for a considerable time while consideration is given to his position”; and
(b) expert evidence indicated that “continued detention would be likely to have a significant deleterious effect on the Applicant’s mental health”.
99 The applicant argued that these findings were “eminently germane to Australia’s international non-refoulement obligations” and that, although the Tribunal had considered these matters in the course of separate considerations mentioned in Direction No. 65, the Tribunal had failed to weigh them in the balance in assessing the consideration of “International non-refoulement obligations”.
100 With one exception, the findings listed above were not matters that would engage the relevant persecution or harm for the purposes of Australia’s non-refoulement obligations and were appropriately addressed in the manner utilised in the Tribunal’s reasons. The exception is the finding of the Tribunal at [149] (under the heading “Extent of impediments if removed”) that, as an Assyrian Christian, the applicant was vulnerable to societal discrimination and possible violence”. This could potentially engage either refugee or complementary protection.
101 Having said that, I do not accept that the Tribunal failed to consider such potential discrimination or violence under the rubric of the Australia’s international non-refoulement obligations. As will be discussed immediately below, the Tribunal considered country information in relation to the violence and discrimination that Christians had experienced in Iraq and, at [147], accepted that Assyrian Christians in Iraq continued to experience a level of harassment and discrimination.
102 The applicant finally raised the criticism that, despite accepting (at [145(f)]) country information that “Christians in Iraq face … moderate levels of societal discrimination and violence”, the Tribunal held at [147] that this does not amount to serious or significant harm. In this regard, I disagree with the submission of the applicant that, in light of the unchallenged country information, this conclusion was “inexplicable, except on the basis that the Tribunal either constructively failed to consider the evidence before it, or … asked itself the wrong question/s in relation to that evidence”. I have already rejected above the contention that the Tribunal misconstrued or misapplied the relevant test in respect of Australia’s non-refoulement obligations on the bases raised above. Neither do I view this aspect of the Tribunal’s reasons as evidencing a failure to consider the evidence before it or carry out its statutory task. The Tribunal did consider the country information, but just reached a conclusion that the applicant disagrees with. That does not manifest jurisdictional error.
103 For these reasons, the second ground of review raised by the applicant must be dismissed.
Ground (3) – Abstinence from illicit drugs and effective future treatment
104 The applicant’s third ground of review contended the following:
The Tribunal’s decision is affected by jurisdictional error in that, in purporting to assess the risk posed by the Applicant to the Australian community, the Tribunal failed to afford the Applicant procedural fairness, and/or failed to exercise the discretion or carry out the statutory task in s 501CA(4) of the Act.
105 The following particulars were set out in the applicant’s originating application in support of the third ground:
a) Expert evidence was given to the Tribunal by a psychologist, Dr Peter Cook, as to the public availability in Australia of suitable treatment for substance abuse and trauma. The Applicant gave evidence to the effect that he would undergo such treatment. The Tribunal’s reasons do not refer to this evidence. Further the Tribunal contended at [115] of its reasons that the Applicant had not put forward clear evidence of how he would assess treatment for his substance abuse and trauma issues. Accordingly, the inference should be drawn that the Tribunal failed to consider the evidence advanced as to how the Applicant would access treatment.
[b)] The Applicant gave evidence that he had abstained from illicit drug use since January 2016—a period of over three years at the time of the Tribunal’s decision. However, the psychologist report provided by Dr Peter Cook, dated 4 February 2019, referred to the Applicant abstaining from drugs for ‘more than 18 months’ (an evidently lesser period). Dr Cook clarified in oral evidence that this was a reference to medication, not illicit drugs, so that no inconsistency arose between his report and the Applicant’s evidence. However, despite initially recording the Applicant’s evidence correctly (at [81](d)), the Tribunal found that the Applicant’s evidence was that he had not take drugs for ‘over 18 months’: [89]. The Tribunal gives this period of abstinence little positive weight, referring to a similar period of abstinence while the Applicant was in prison 2004 to 2006, after which he resumed illicit drug use and associated offending. The inference should be drawn that the Tribunal failed to consider the clarification made by Dr Cook, thereby misconstruing the evidence before it; and/or that it made a finding for which there was no evidentiary basis.
Particular 3(a) – Failure to consider evidence regarding access to treatment
106 One of the primary considerations for the Tribunal to consider under Direction No. 65 is the protection of the Australian community. Paragraph 13.1.2(2) of Direction No. 65 provides that, 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).
107 Given that many of the applicant’s crimes were committed against a background of drug and alcohol abuse, an issue before the Tribunal, for the purposes of assessing the likelihood of the applicant engaging in further criminal or other serious conduct should his visa cancellation be revoked, was the extent to which he was able and willing to access appropriate treatment to ameliorate that risk.
108 The Tribunal considered the applicant’s PTSD and drug and alcohol abuse, and his attempts to deal with those issues, at [87]-[99] of its reasons. This included consideration of evidence from the following people to have treated the applicant:
(a) Andres Leal, a torture and trauma specialist counsellor from the Indian Ocean Territories Health Service on Christmas Island; and
(b) Dr Peter Cook, a clinical psychologist.
109 Having considered this evidence, amongst other related matters, the Tribunal relevantly concluded as follows in relation to the risks to the Australian community should the applicant commit further offences or engage in other serious conduct:
113. The Applicant‘s claim that he is not a risk of re-offending rests largely on his assurance that he is now a changed man, who understands the cause of his mental health problems and has the resolve to address his drug and alcohol addiction. The Tribunal accepts that the Applicant has made progress in relation to his propensity to reoffend but does not underestimate the challenges that he will face if he is released.
114. The Applicant has a long history of very serious criminal conduct and disregard for the law. His psychological problems are manifestly significant. His ice addiction is of long-standing, having begun in around 2005. He has been a heavy drinker since the early 1990’s and has acted violently when under the influence of alcohol.
115. The Tribunal accepts that the Applicant has taken positive steps while in detention to address his mental health issues and his drug and alcohol addiction, but the question is whether he can sustain the progress he has made when he is released and is faced with the challenges that he will face in the community. The assessments of Mr Leal and Dr Cook are cautious and both accept that there is a high risk that the Applicant will relapse into drug addiction if he does not get access to long-term ongoing addiction and trauma focussed counselling after he is released. The Applicant has not put forward clear evidence of how he might be able to access such care. Dr Cook has confirmed that it is very difficult to overcome an ice addiction.
116. In addition, there are matters which raise a question as to whether the Applicant has the resolve necessary to fully address his issues. He stated in his evidence that he does not intend to abstain from the consumption of alcohol completely but rather will seek to control his consumption to a modest level, consuming only wine and beer. He also admitted that he had used drugs while in detention even after his visa was cancelled and he made an unsuccessful attempt to overcome his drug and alcohol addiction in 2005/2006; albeit that at that time he did not appreciate that he was suffering from PTSD.
(Emphasis added.)
110 The applicant criticised the passage emphasised above at [115], which, read with the preceding sentence, expressed that the applicant had not put forward clear evidence of how he might have been able to access to long-term ongoing addition and trauma focussing counselling should he be released. The applicant says that this Court should draw an inference from this statement that the Tribunal failed to consider the evidence which was advanced about how the applicant might be able to access appropriate care and treatment.
111 At the hearing of this application, counsel for the applicant pointed to various instances in the transcript of the hearing before the Tribunal where evidence was provided about the applicant’s ability and willingness to access appropriate treatment. The applicant gave evidence in the Tribunal about the benefit of having the support of a counsellor and his desire to have one in the future. Dr Cook gave more particular evidence about the future treatment required to support the applicant in his circumstances.
112 After the completion of his cross-examination in the Tribunal, Dr Cook provided answers to a various questions asked by the Tribunal member:
[MEMBER:] The other thing is I have notice in [Mr Leal’s report] … - he has recommendations at the end of his report at page 296. He says, he’s recommended:
If access to long term ongoing addiction and trauma focus counselling were facilitated RZSN would being a high risk of relapse if he does not have the proper support mechanisms once released from detention despite his best efforts.
Do you agree with that?---Yes, I do.
What sort of level of counselling do you think would be necessary to meet that recommendation if you like?---I think the best scenario for RZSN would be if he became involved particularly in Narcotics Anonymous and was having some counselling aside from that with a specialist drug and alcohol counsellor. Financial limitations would mean that he – I doubt that he would be able to afford the level of assistance that he needs and so the ENA model I think could provide the extra support and buffering he needs. He needs ---
Are these sort of – sorry?---He needs something very intensive.
Are those sorts of counselling services available?---Well, Narcotics Anonymous is certainly readily available to anyone who wants to go along to it. He would be eligible to get some psychological treatment under the Medicare system and there’s talk about that expanding from the current ten sessions a year, and there are some drug and alcohol agencies around. We may be able to access additional treatment as well.
That would require some sort of coordinate regime of counselling or treatment, wouldn’t it? It shouldn’t be left to RZSN to sort of coordinate the different services? ---Yes, I agree.
How likely do you think he could get access to an effective counselling regime if he were released from detention into community?---I think it’s quite possible. As I said I’ve got a couple of my current clients, and I don’t run a big practice these days, who have used ice in the past and used other drugs and alcohol in the past, quite substantial addiction histories, they are both doing fairly well at the moment through a combination of Narcotics Anonymous and seeing myself.
113 It is clear that Dr Cook’s evidence was that it was possible for the applicant to obtain effective treatment if released back into the community. However, he also alluded to financial limitations that the applicant may face and the need for users of those services to have a sufficient level of commitment to the programs to achieve effective results.
114 In my view, contrary to the submission of the applicant, the impugned sentence in [115] of the Tribunal’s reasons does not support an inference that the Tribunal failed to have regard to the evidence in relation to how the applicant would access appropriate treatment. It is clear from [113]-[116] of the Tribunal’s reasons, as extracted above, that the Tribunal had regard to the evidence of Mr Leal and Dr Cook, in addition to that given by the applicant himself, about the future prospects of the applicant obtaining treatment. However, the tenor of these passages, and in particular [116], is that the Tribunal held doubts, for the purposes of assessing any future risk to the community, as to the likelihood of the applicant to obtain adequate treatment to address such risk.
115 The impugned sentence in [115] should be read in this light. The sentence should not be read as suggesting the applicant had not put forward any evidence about how he might be able to access relevant care. Combined with other features of the Tribunal’s reasons, it rather expressed the Tribunal’s opinion that the applicant had not provided persuasive evidence of how the applicant would access such care to the extent that it addressed or mitigated the risk to the Australian community in question.
Particular 3(b) – Erroneous reference to period of abstinence
116 The applicant’s final complaint was in relation to an erroneous reference in the Tribunal’s reasons to the length of the period prior to the Tribunal’s decision during which the applicant had abstained from using illicit drugs.
117 The applicant had given evidence that he had not used illicit drugs since around December 2015 or January 2016, being about three years prior to the Tribunal’s decision on 27 February 2019. However, the report of Dr Cook, dated shortly prior to the decision, indicated that the applicant had “stopped using drugs around 18 months ago”. In oral evidence before the Tribunal, Dr Cook explained that this was an error on his part and that this passage in his report should have referred to the applicant having stopped using medication (not illicit drugs) about 18 months ago.
118 In the course of considering the applicant’s PTSD and drug and alcohol abuse, however, the Tribunal stated the following at [89]:
[The applicant] said that he has not taken drugs despite their availability in detention for over 18 months; and placed substantial reliance on his abstinence to indicate that he will not resume drug taking if he is released. The Tribunal accepts that his abstinence is a positive indicator but gives it limited weight in view of the evidence that he was able to abstain from drug and alcohol abuse during his previous time in prison.
(Citations omitted and emphasis added.)
119 As submitted by the applicant, the emphasised portion of this passage is incorrect. The applicant’s evidence is that he had instead not taken drugs (of an illicit form) for over three years prior to the Tribunal’s decision. However, for the following reasons, this does not amount to a jurisdictional error on the part of the Tribunal.
120 First, the erroneous statement was apparently a mere slip by the Tribunal in the course of drafting its reasons. The Tribunal had earlier (at [81(d)]) referred correctly to the applicant’s evidence that “he has not taken drugs since December 2015 or January 2016”.
121 Second, and further, the error was not material to the outcome of the Tribunal’s decision such that the valid exercise of the Tribunal’s jurisdiction was affected. The Tribunal accepted at [89] that “his abstinence was a positive indicator” but that it should be attributed “limited weight”. Reading the reasons of the Tribunal as a whole, my view is that any failure by the Tribunal to correctly appreciate the applicant’s evidence about the duration of his abstinence from illicit drugs (i.e. about three years instead of about 18 months) could not have materially affected the outcome of the Tribunal’s decision.
122 For these reasons, the third ground of review raised by the applicant must be dismissed.
123 For the reasons set out above, the applicant’s judicial review application must be dismissed. The applicant will pay the Minister’s costs of and incidental to the application.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson. |
