FEDERAL COURT OF AUSTRALIA

FTJ18 v Minister for Home Affairs [2019] FCA 1775

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the applicant, a citizen of India, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 October 2018: BLSL and Minister for Home Affairs [2018] AATA 3681. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister) to refuse to grant the applicant a protection visa on character grounds pursuant to s 501(1) and (6) of the Migration Act 1958 (Cth) (the Act).

2    Section 501(1) of the Act provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.” Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia”. Pursuant to these provisions the decision-maker, in the present case the Tribunal, is required to make an evaluative judgment as to whether it is satisfied that there is a risk that the person would engage in criminal conduct in Australia. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person. Such a discretionary decision is subject to Ministerial Direction No 65 (Direction 65) made under s 499 of the Act, Part B of which sets out a series of considerations to be taken into account by a decision-maker in deciding whether to refuse to grant a visa.

3    The applicant has lived in Australia since 2007 and he has a history of criminal conduct which includes offences involving drink-driving, driving whilst disqualified, and a short burst of violent offending including two assaults which occurred over the space of two weeks in late September and early October 2016 at a time when he was suffering from a drug induced psychosis. The applicant’s evidence is that he had been using synthetic cannabis around the time of the offences and stopped doing so after that. It is uncontentious that he did not commit any further offences in the nine month period while he was remanded on bail before being taken into immigration detention in August 2017. He has remained between immigration detention and custodial detention ever since.

4    The visa refusal decision was made against the backdrop that, in an earlier decision, the Tribunal found that the applicant faces a real chance of persecution for a Refugees’ Convention reason if he returns to India. Sections 197C and 198 of the Act require that, if he does not have a visa, he must be removed from Australia as soon as practicable.

5    The application raises two broad questions:

(a)    first, whether the Tribunal failed to give consideration to representations by the applicant as to whether there was a risk that if allowed to remain in Australia he would engage in criminal conduct, and also as to whether the discretion to refuse to grant him a visa should be exercised. The applicant argues that the Tribunal did not give proper consideration to: the applicant’s claimed abstinence from and treatment for cannabis use; the time he had spent in the community without offending since his offending conduct; or the impact of the decision to not grant a visa on the victims of his offending conduct; and

(b)    second, whether the Tribunal’s decision was legally unreasonable or illogical in finding that it could not be satisfied, one way or the other, that the applicant had suffered hallucinations at the time of his offending conduct, and in finding that his drug use was more extensive than he admitted, each of which findings fed into adverse credibility findings.

6    I am not satisfied that the Tribunal fell into jurisdictional error and it is therefore appropriate to dismiss the application for judicial review.

The facts and procedural history

7    This account of the facts is drawn from the materials before the Tribunal and its findings.

8    The applicant came to Australia from India on a student visa on 10 April 2007, and he remained lawfully in the country on subsequent student and bridging visas. In approximately October 2010 he converted from Sikhism to Islam and in January 2011 he married a woman, a New Zealand citizen, who had also converted to Islam. That relationship broke down within two months and his wife returned to New Zealand.

9    On 8 May 2013 the applicant made an application for a Protection (Class XA) visa. He claimed that as a result of his religious conversion he had been abused and threatened with serious harm, including death, by members of his family and others in the Sikh community of his hometown, and said that he faced persecution if returned to India. On 14 January 2015 a delegate of the Minister refused the application.

10    The applicant appealed the delegate’s decision to the Tribunal. On 18 February 2016 the Tribunal broadly accepted the applicant’s claims and found that he had a well-founded fear of persecution in India for a Refugees’ Convention reason. It also accepted that it was not reasonably practicable for him to relocate within India to live in a Muslim community, away from his hometown. It found that Australia owed protection obligations to him and remitted the application to the delegate for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

11    In the meantime the applicant had been convicted of several drink-driving offences, including:

(a)    in 2009, a conviction for drink-driving for which his licence was disqualified for approximately 12 months; and

(b)    in 2012, another conviction for drink-driving for which his licence was disqualified for four years.

The applicant had not mentioned these convictions in his visa application.

12    Following the Tribunal’s decision in February 2016, the applicant committed a number of further offences, two of which involved violence:

(a)    on 1 July 2016 the applicant drove a motor vehicle whilst disqualified;

(b)    in August 2016 the applicant again drive a motor vehicle whilst disqualified;

(c)    on 24 September 2016 the applicant assaulted his housemate, Mr Abdul Wahad, at a house they shared in Glenroy. As the Tribunal described the incident, the applicant came home one day after work and a dispute arose with his housemate over accommodation arrangements. The dispute developed to the point where the applicant struck the housemate several times with a belt, and his housemate suffered swelling and cuts. The applicant then used a butter knife making stabbing motions towards his housemate who raised his hands in self-defence and as a result received shallow cuts to his palm. During the course of the incident the applicant made threats to kill his housemate. The police attended the Glenroy house and arrested the applicant. He was bailed to appear at Broadmeadows Magistrate’s Court on 8 December 2016, on conditions including that he not attend the house in Glenroy and that he report daily to Fawkner Police Station;

(d)    four days later on 28 September 2016, the applicant attended the Glenroy house and he was arrested by police for breaching his bail conditions. In evidence before the Tribunal the applicant accepted that he knew that he was prohibited from attending the house;

(e)    on 30 September 2016 the applicant threw a brick through a window in his motel room at the Coburg Motor Inn. The room had been arranged for him by the police following the incident on 28 September. He was again arrested, taken to the police station and charged with intentional damage to property; and

(f)    on 4 October 2016 the applicant attended a mosque in West Melbourne where a religious service was taking place. The applicant was verbally abusive towards people who were praying and he was asked to leave. Outside the mosque he approached a worshipper and, without warning, he punched that person in the face. When the victim attempted to run away, the applicant gave chase and kicked him in the leg which caused the victim to fall to the ground. While the victim was on the ground the applicant stomped on his chest. The victim then stood up and tried to run to the door of the mosque but the applicant chased him again and grabbed him by the throat to prevent him from shouting for assistance. Eventually several members of the congregation intervened to assist the victim. A few minutes after carrying out the assault the applicant returned to the mosque and began praying. The incident was captured on CCTV and the applicant was arrested at the mosque.

13    Following the incident at the mosque the applicant was remanded in custody until he was released on bail on 8 November 2016.

14    On 3 August 2017 the Department of Immigration and Border Protection (the Department) cancelled the applicant’s bridging visa due to the charges laid against him. On 9 August 2017 the applicant was taken into immigration detention at Maribyrnong Immigration Detention Centre (MIDC).

15    On 24 August 2017 the applicant pleaded guilty and was convicted at Broadmeadows Magistrates Court of the following offences and was sentenced to five months imprisonment:

(a)    driving whilst disqualified – two charges;

(b)    using an unregistered motor vehicle on the highway – two charges;

(c)    making threats to kill;

(d)    recklessly causing injury – two charges;

(e)    contravening bail conditions – two charges;

(f)    failing to answer bail – two charges;

(g)    committing an indictable offence whilst on bail;

(h)    breaching an alcohol interlock condition;

(i)    forging an identifying number as authorised or required by the Road Safety Authority;

(j)    wilfully injuring property; and

(k)    handling and receiving stolen goods.

As a result of this conviction he was transferred from immigration detention to prison to serve the sentence imposed.

16    The applicant appealed to the County Court against the sentence imposed. At the time of the hearing on 9 November 2017 the applicant had already served 114 days of the term of imprisonment to which he had been sentenced. Judge Hannan had regard to the time already spent in custody and overturned the sentence of imprisonment. In its place she imposed a 12 month Community Corrections Order (CCO) which contained specific conditions requiring the applicant to undergo assessment and treatment for drug abuse or dependency, as well as to undergo mental health assessment and treatment. The relevant conditions of the CCO were:

Treatment and Rehabilitation

You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.

You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.

You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.

17    Although her Honour imposed a non-custodial sentence she described the applicant’s offending conduct as “really significant violence”.

18    The applicant did not though undergo treatment for drug abuse or dependency as required under the CCO because he was returned to MIDC immediately after sentencing. In December 2017 he was transferred from MIDC to Yongah Hill Immigration Detention Centre (YHDC).

19    On 10 November 2017 the Department requested the applicant to provide a character statement regarding the circumstances in relation to his offences.

20    On 11 December 2017 the applicant’s migration agent, the Asylum Seeker Resource Centre (ASRC), provided the Department with a Statutory Declaration by the applicant made 11 December 2017 (Statutory Declaration), together with a letter from Mr Abdul Wahab (Mr Wahab’s letter), the victim of the applicant’s assault on 24 September 2016.

21    On 15 March 2018 the Department sent a letter to the applicant giving notice of its intention to consider refusing his visa application, stating that the Department had information about his criminal history which suggests that he may not pass the character test by virtue of s 501(6)(d) of the Act. The Department invited the applicant to provide information to satisfy the decision-maker that he passes the character test and on whether the decision-maker should exercise his or her discretion to refuse his visa application. It included as attachments: copies of various documents including Direction 65, the applicant’s National Police Certificate dated 14 February 2018, his visa application, his undated statement of claims in support of his visa application, his Statutory Declaration, a Victoria Police charge-sheet and summons dated 7 September 2016, a work reference supplied by Mr Neil Correa dated 12 December 2017 and a medical report from North Western Mental Health dated 24 July 2017 (the North Western Mental Health report).

22    On 3 May 2018 the ASRC lodged comprehensive submissions in support of the application (the applicant’s submissions) attaching a number of documents to which I refer below. The central theme of the applicant’s submissions was that he had lived in Australia for over 11 years and had been a law-abiding resident for the overwhelming majority of that time, that his offences in 2016 were a few isolated incidents caused by acute mental illness, that his offences were not serious as evidenced by the non-custodial sentence imposed, that he was remorseful and had engaged with support services to rehabilitate himself, and that the medical evidence and character references confirm that he does not pose any risk to the Australian community.

23    On 28 June 2018 the delegate of the Minister decided to refuse to grant the applicant a visa under s 501(1) of the Act, determining that the applicant represented an unacceptable risk of harm to the Australian community and that he could not be satisfied that the risk of him reoffending was negligible. The Department informed the applicant of this by letter dated 10 July 2018.

24    On 17 July 2018 the applicant applied to the Tribunal to review the delegate’s decision.

25    The Tribunal heard the application on 19 September 2018. It had before it all the materials that were before the delegate as well as some further materials obtained from Victoria Police and Corrections Victoria by summons.

The material before the Tribunal

26    The attachments to the applicant’s submissions included the following documents:

(a)    the applicant’s National Police Certificate recording his various convictions;

(b)    the CCO imposed by the County Court on 9 November 2017;

(c)    the applicant’s Statutory Declaration;

(d)    the North Western Mental Health report;

(e)    a letter from the Australian Red Cross dated 1 June 2017 (the Red Cross letter)

(f)    a letter from Holyoake Community Alcohol & Drug Service dated 21 August 2018 regarding a program the applicant completed while in YHDC (the Holyoake letter)

(g)    three pages of clinical records of International Health and Medical Services, the health provider in YHDC, relating to the applicant, dated January 2018 (the IHMS records);

(h)    Mr Correa’s work reference, in which he spoke highly of the applicant’s reliability and work capacity; and

(i)    three character references provided by friends of the applicant.

27    The further material obtained on summons included the following:

(a)    Victoria Police documents including the charge sheet, photographs and medical reports;

(b)    Corrections Victoria documents including assessments, forms and other records made when the applicant was in remand immediately after the offences; and

(c)    a transcript of the County Court appeal hearing on 8 and 9 November 2017.

28    It is convenient to now turn to the salient parts of this material.

29    In his Statutory Declaration the applicant detailed the development of his mental health problems but he did not, at that point, make any reference to such problems having any relationship to his use of synthetic cannabis. He said:

6.    From around 2014, I have had depression. It became worse when the Department of Immigration refused my protection visa application. I was so anxious that I would be sent back to India and would face serious harm because of my conversion to Islam. I had also been disowned by my family and this was very upsetting.

7.    In around January 2016, I started feeling really unwell and had suicidal thoughts. I called my mother around this time and told her; my mother told me that I should kill myself. This made me feel extremely upset.

8.    I also started hearing voices and having hallucinations. I was feeling very anxious because I had been shunned by my family and I had no family here to help me. I was also very worried about supporting myself and was scared I would become homeless if I did not have a job. All the stress in my life became too much for me to cope with and I became very unwell.

9.    At around the start of 2016, I called the police and told them that I was having suicidal thoughts. The police came to my house and called the ambulance who took me to Epping Hospital. I stayed there for around two to three hours and was released.

10.    I did not receive any regular counselling or psychiatric support during this time. Because I was so unwell, I was unable to find support by myself.

11.    Because I was very unwell last year, I made some mistakes and got in trouble with the police. I was not myself during this time and was very unwell. This was the first time in my life that I had been in trouble with the police. I am extremely remorseful about what I did last year. This is not how I normally behave and I feel embarrassed about what happened.

12.    In around November 2016, I was held in custody and placed in a psychiatric ward. During this time in jail, because I could access psychological help, I stopped having hallucinations.

13.    In around November 2017, a judge issued me with a Community Correction Order which included receiving psychological treatment.

14.    I still feel very depressed and anxious, but I no longer have any hallucinations. Last week was the first time that I have been able to speak to a doctor about my mental health while I have been in immigration detention. This doctor prescribed some medication for my mental health issues.

30    The applicant also described how he said his mental health problems related to the offences he committed in September and October 2016:

(a)    in relation to his assault on his housemate, Mr Abdul Wahad, on 24 September 2016 he said:

26.    I cannot remember everything that happened after I spoke to the owner. Abdul left my room and I felt very panicked and overwhelmed. I felt scared at the time and thought Abdul was going to hurt me. I remember thinking that I needed to protect myself.

27.    At the time, I had a hallucination about a bird telling me that Abdul was haram - that he is a bad guy who is greedy and wants me to be homeless. I told Abdul that the bird told me that he is haram and greedy.

28.    I remember taking my belt often hitting Abdul with it to protect myself. I never wanted to seriously hurt Abdul or kill him. I only wanted to protect myself.

…

30.    When I was at the police station I was very distressed and confused about what had happened. I did not understand what the police were telling me as I was not in a good state of mind…

(b)    in relation to causing wilful damage to property at the motel on 30 September 2016 he said:

35.     After this one night at the motel, I was homeless. I was moving from place to place to find somewhere to sleep. I was extremely unwell at this point and hearing voices. I left some of my things at the motel because I could not carry everything with me.

36.    After a couple of days, I returned to the motel to collect my belongings. When I was at the motel, I had a hallucination and thought that my wife was in a motel room with someone else. I don’t know why I thought this because I was not married at the time. I was extremely unwell. I felt overwhelmed at the time and wanted to see if she was in the room. I first knocked on the door of the room, but there was no response. I then took a brick and threw it against a small window of the room and the window broke.

(c)    in relation to his assault on a worshipper at the mosque on 4 October 2016 he said:

39.    One day in October 2016, I went to evening prayers at the mosque. I saw a man and had a hallucination at the mosque that this man was putting an evil spirit on me. I could feel the evil spirit sitting on my shoulder. I asked the man about this and he nodded his head – I think he may have been on the phone at this time which is why he nodded his head. Because I thought the man had said ‘yes’ to putting the spirit on me, I became angry and pushed him.

31    The applicant’s Statutory Declaration also contained an account in relation to the less serious offences. He gave an explanation of the circumstances in which he drove whilst disqualified in July and August 2016, and in relation to the charge of handling and receiving stolen goods. In regards to the latter charge he said that the police found him in possession of a jacket that had a store security tag attached to it but that he did not remember where he got the jacket from. He did not give an explanation concerning the charge of breaching an alcohol interlock condition offence but he told the Tribunal that he did not have sufficient funds to pay for the required alcohol interlock device to be installed in his vehicle so he drove it without the device.

32    The applicant’s submissions relied upon the Statutory Declaration as demonstrating that his violent offences in September and October 2016 occurred in extenuating circumstances, namely that he was suffering from an acute episode of mental illness and experiencing hallucinations, and that his behaviour was out of character.

33    The North Western Mental Health report is important in the case. It relevantly said (without correction):

[The applicant] has been brought to attention of North West mental health only in two occasions in December 2016 and July 2017 and our understanding about him is limited to these two cross-sectional presentation as there has not been any follow up between these two. First time he was referred for case management after an acute episode of drug induced psychosis that had residual symptoms and serious legal consequences for him. [The applicant] did not engage with mental health services after that and he moved to another area and did not receive any treatment. He reported that since last year he had no contact with GP either.

He has been self-referred recently on 12/7/17 after his lawyer’s advice to provide a supportive medical letter and presented with some depressive symptoms and vague hallucinations but very distressed by his potential visa problems. He was diagnosed with drug induced psychosis in 2016 and his provisional diagnosis after his recent review on 12/7/17 is adjustment disorder with depressive features and Cannabis use disorder.

Understandably, considering his past history of adjustment problems and other vulnerabilities, there is a risk of decompensation and deterioration if he faces the outcome of being sent to a detention centre. At this stage, as the outcome of our assessment, he will be referred to a GP for longer monitoring of mental state and assessing the need for medication the future.

(Emphasis added.)

In his submissions the applicant relied on the report as showing that he had “an acute episode of drug induced psychosis” and also relied upon the provisional diagnosis in July 2017 of “an adjustment disorder with depressive features and cannabis use disorder.” He said that he used synthetic cannabis in 2016, but that he no longer did so.

34    The Red Cross letter concerns the period between the applicant’s release from remand on 8 November 2016 and 1 June 2017. It relevantly said:

This is to confirm that [the applicant] is an asylum seeker and a client of Red Cross. He began engaging in our services on the 8th of November 2016. He had just been released from prison and was after financial support, which included housing. [The applicant] also stated that he wanted assistance with physical and mental health issues he was facing upon release from prison.

[The applicant] was approved onto the SRSS [Status Resolution Support Services] on 29/11/2016 and from this date onwards we have provided him with intensive casework support to assist him with his health issues and accommodation amongst other things. He has always attended his appointments and engage with us in an honest way.

35    The Holyoake letter concerned a 12 week program the applicant undertook while in YHDC. It relevantly said:

[The applicant] has completed the Holyoake Men’s Group twelve week program at the Yongah Hill Immigration Detention Centre.

The group is predominantly alcohol and drug related. Topics covered include: The Process of Dependency, Change, Relapse Prevention and Letting Go, Emotions and Stress, Embarrassment, Guilt and Shame, Personal Boundaries, Communication, Grief and Loss, Family Dynamics and Coping Behaviours, Self-Esteem, Understanding Behaviours, Relationships and Self-Responsibility.

[The applicant] consistently contributed and was always courteous.

[The applicant] has continued access to the services of this agency.

36    The IHMS records are made by a mental health nurse at YHDC and relate to 3 dates in January 2018. They record that the applicant said that he was hearing voices and getting messages from the radio and TV in 2016, but that was the only time in his life that it happened. The nurse recorded her ‘impression’ that he had a previous psychotic episode and was now in remission, and that the applicant presented no risk of harm to others. The applicant relied upon those matters.

37    The documents produced on summons to the Tribunal provided some further evidence in relation to the applicant’s mental health at the time of his violent offences, including:

(a)    the prosecution brief prepared by Victoria Police, which states that when the applicant was arrested on 4 October 2016 he told the police that “the mosque had stolen his soul”, and that the applicant was assessed by a Forensic Medical Officer at that time and deemed unfit to be interviewed;

(b)    a Melbourne Assessment Prison checklist on the day of the applicant’s arrival on 6 October 2016, states that the applicant appears “delusional” and suffering from “psychotic symptoms”;

(c)    a Melbourne Assessment Prison Reception Interim Risk Management Plan dated 6 October 2016, undertaken by a mental health professional, states that the applicant was being “profoundly uncooperative/psychotic” and an “unpredictable volatile individual”. A similar assessment was made as part of a HRAT Modified Risk Management Plan on 7 October 2016;

(d)    for two days during the period of remand the applicant was held in a psychiatric ward;

(e)    a Victoria Department of Justice record dated 25 August 2017 states that the applicant said that he had anxiety, depression and psychosis;

(f)    a Corrections Victoria record dated 28 August 2017 which states:

In regard to medical and mental health [the applicant] reported that he suffers from psychosis, depression and anxiety, and states that he was under the care of East Northern Mental Health prior to custody.

(g)    the transcript of the County Court appeal shows that the applicant’s counsel submitted that a community correction order was appropriate because there were “clear mental health issues” that required to be addressed on an ongoing basis. Judge Hannan said that the applicant “clearly needs assistance”, and said that the applicant’s case “seems to scream out for a full assessment in relation to a CCO, including in relation to mental health issues”. Her Honour described the appellant as “someone with some real mental health difficulties”.

38    The documents produced on summons also provided evidence in relation to the applicant’s synthetic cannabis use, including:

(a)    a Corrections Victoria document dated 28 August 2017, which states that the applicant reported “using synthetic cannabis and alcohol prior to custody”;

(b)    a Corrections Victoria assessment form dated 4 October 2017 (the Corrections Victoria assessment form), signed by the applicant on that date. The form relates to the reintegration requirements for a person who is shortly to be released from prison into the community, and it is clear on the face of the form that it is to be filled in with information supplied by the prisoner. Question 7 of the assessment form requests that the prisoner:

Self-report alcohol or drug use likely to be an issue after release?

The form records the answer as “Yes” and “Cannabis” is noted in handwriting; and

(c)    a COATS Prison Referral Form dated 5 October 2017 which records cannabis as the applicant’s drug of choice.

39    The applicant was not legally represented before the Tribunal. He gave evidence and was cross-examined, including in relation to the extent of his cannabis use, and his view of any connection between his mental health difficulties and cannabis use.

40    On 2 October 2018 the Tribunal affirmed the decision of the delegate dated 28 June 2018 and refused the applicant’s visa application. I will deal with the relevant parts of the Tribunal’s decision below.

Ground 1

41    Ground 1 of the application alleges the following broad ground, particularised by three sub-grounds:

The Administrative Appeals Tribunal (AAT) failed to give consideration to representations made by the Applicant which went to whether there was a risk the Applicant would engage in criminal conduct in Australia and whether a discretion ought to be exercised to refuse the Applicant’s Protection (Class XA) visa.

For convenience I will describe the sub-grounds as Grounds 1.1, 1.2 and 1.3.

Ground 1.1 - that the Tribunal paid no regard to the applicant’s stated abstinence from synthetic cannabis and his treatment for cannabis use

42    Ground 1.1 alleges:

The AAT paid no regard to the Applicants stated abstinence from synthetic cannabis and treatment for cannabis use.

(a)    In his AAT hearing, the Applicant asserted that he no longer used synthetic cannabis and that he hates the drug.

(b)    The Applicant had engaged in some drug and alcohol treatment.

(c)    While the AAT made findings about the Applicants drug use, it did not expressly engage with the Applicant stated position that he was not using cannabis, or to his drug treatment.

43    This ground is in part based on the Tribunal’s reasons (at [73]) which said:

The Tribunal accepts that the Applicant suffered from drug induced psychosis. The North Western Mental Health assessment contains the opinion of a mental health care professional. It is consistent with the use of drugs that have been identified in the course of the evidence. The Tribunal does not accept the evidence given by the Applicant concerning his drug taking and considers that it was far more extensive than he was prepared to admit. In the event that he is released into the community, there is a real risk that he will relapse into drug taking. This is a risk that he recognised himself when he referred to the term “cannabis” in the assessment form completed whilst he was in custody and referred to earlier in these reasons. However, he appears not to have come to terms with the fact and consequences of his drug taking.

The Tribunal’s references to drugs and drug use must be a reference to the applicant’s use of synthetic cannabis as there is no evidence that the applicant used any other drug.

44    As the applicant submits, the Tribunal’s reasons (including at [47]-[51]) show that it relied on the following matters in making those findings:

(a)    that the applicant signed the Corrections Victoria assessment form which states that cannabis might be an issue for him upon release from custody;

(b)    the Tribunal’s assessment that the applicant was reluctant to acknowledge that he had suffered a drug induced psychosis;

(c)    the applicant’s denial that he had used cannabis for very long, that his use was problematic, or that he had a disorder, issue or dependency on drugs;

(d)    the Tribunal’s assessment that the applicant tried to downplay or diminish the gravity of using cannabis by saying that he only used 0.2 grams per week, that synthetic cannabis was legal, and that the applicant has little regard to the legality of his actions;

(e)    that the applicant was placed on a CCO with specific conditions requiring assessment and treatment for drug abuse or dependency; and

(f)    at least arguably, the background of the Tribunal’s other adverse credibility findings in relation to the applicant.

45    Against that the applicant points to his testimony before the Tribunal where he said:

(a)    he only smoked cannabis for a few months before his offending conduct. He denied having a cannabis habit and said he only smoked it with his friends once a week and only used about 0.2 grams per week;

(b)    he did not have a problematic pattern of cannabis use or a cannabis disorder in 2016, but to the extent that he did he had recovered from that now and was now “well”;

(c)    he was not sure that there was a connection between his cannabis use and his hallucinations at the time he committed the offences in 2016, and that his hallucinations were more likely to be related to his anxiety and depression; and

(d)    in any event he no longer used cannabis and now “hated” it.

The applicant relies on the Holyoake letter to argue that he engaged in voluntary drug treatment while in immigration detention and that he had recovered from any problematic pattern of cannabis use.

46    The applicant argues that the Tribunal made no reference to his evidence that he now “hates” cannabis and does not use it anymore, nor his evidence that he has recovered from any problematic pattern of cannabis use including by engaging in drug and alcohol treatment, as shown by the Holyoake letter. He says that shows that the Tribunal did not engage with his evidence and submissions in relation to those matters.

47    The applicant also argues that cl 11.1.2(3)(b)(ii) of Direction 65 mandated that the Tribunal:

In considering the risk to the Australian community, decision-makers must have regard to, cumulatively…[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account…evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…

(Emphasis added.)

48    He contends that the Tribunal was required to have regard to evidence of any rehabilitation achieved by the applicant at the time of the decision and give weight to time he spent in the community since his most recent offence. He argues that the Tribunal’s reasons show that it failed to do so, as they do not refer to the applicant’s “rehabilitation by abstaining” from cannabis use or by engagement with drug abuse treatment through Holyoake, nor to the fact that he did not commit any further offences in the period between his release from remand on 8 November 2016 and being placed into immigration detention on 9 August 2017.

49    If the applicant is able to establish that the Tribunal did not engage with his evidence and submissions that may constitute jurisdictional error by failing to engage in an active intellectual process or by failing to give proper, genuine and realistic consideration to:

(a)    a “substantial, clearly articulated argument relying upon established facts”: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed);

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

(c)    a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review”: see ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] (Bell, Keane and Gordon JJ).

A failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction may also be characterised as meaning the decision-maker constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [35]-[39] (Mortimer J).

50    Whether any such error rises to the level of jurisdictional error will depend upon whether it is ‘material’; in the sense that the error deprived the applicant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 (Hossain) at [25] and [30] (Kiefel CJ, Gageler and Keane JJ).

51    In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal) at [76] (Perram, Murphy and Lee JJ) the Full Court said:

The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account: Acts Interpretation Act 1901 (Cth) s 25D; s 501G of the Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37] and [69]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

52    On a fair reading of the Tribunal’s reasons I am not satisfied that it is appropriate to conclude that the Tribunal failed to give proper consideration to the applicant’s evidence that he no longer uses cannabis and that he now hates it, nor his evidence that he had “recovered” and had also that he had engaged in some drug abuse treatment

53    First, it is abundantly clear that the Tribunal appreciated the applicant’s claim that he no longer used cannabis and his assertion that, to the extent that he ever had a cannabis problem, he had recovered. This can be seen from the Tribunal’s reasons:

(a)    at [47], where the Tribunal noted the applicant’s evidence that it “was not his intention to smoke cannabis”;

(b)    at [48], where the Tribunal said that the applicant sought to explain away the opinion of North Western Mental Health that he had experienced an acute episode of drug induced psychosis “by saying that he no longer used any drugs and that he did not consider that he had a psychosis”;

(c)    at [49], where the Tribunal noted the applicants claim to have “stopped using [cannabis] long ago” and that “he steadfastly denied that he had used it for very long, nor that it was problematic, or that he really had a disorder, issue or dependency on drugs”; and

(d)    at [50], where the Tribunal said that the applicant “strenuously denied he had a [cannabis] habit”.

54    Second, it is plain that the Tribunal broadly rejected the applicant’s evidence in relation to the extent of his cannabis use, and the risk that he would again use cannabis. It did not accept his evidence that he used cannabis only for a few months shortly before his offending conduct, his evidence that he mistakenly signed the Corrections Victoria assessment form which states that cannabis use was likely to be a risk for him after release from custody, his denial that his cannabis use was problematic such that he had a disorder or dependency upon cannabis, nor his claim to have recovered from any problematic pattern of cannabis use.

55    This can be seen in the Tribunal’s reasons:

(a)    at [73], where it said that it did not accept the applicant’s evidence concerning his drug taking and considered that it “was far more extensive than he was prepared to admit”;

(b)    at [48], where it said that the applicant was disingenuous in attempting to downplay the diagnosis by North Western Mental Health that he had suffered a drug induced psychosis;

(c)    at [48] and [73], where it rejected the applicant’s evidence that the handwritten response “cannabis” to the question in the Corrections Victoria assessment form was merely a mistake, and that he did not pay much attention to the form because he was in a hurry to be released. The Tribunal said (at [48]) that the applicant’s testimony in relation to the form demonstrated a tendency on his part “to simply sign or do anything that he thought might advance his interests”, and (at [73]) that by having “cannabis” noted on the assessment form the applicant himself recognised the risk that he might relapse into cannabis use;

(d)    at [49], where it said that the applicant sought to deflect the nature and effect of his drug use;

(e)    at [51], where it said that it was unlikely that Judge Hannan would have imposed a CCO that included specific drug abuse or dependency treatment and rehabilitation conditions unless her Honour considered he suffered from a serious drug problem. The applicant argues that the specific conditions in the CCO regarding assessment and treatment for drug abuse or dependency are “standard terms” for people found guilty of crimes linked in some way with drugs, but there is no evidence of that and the basis for that submission is unclear;

(f)    at [73], where it said the applicant had not come to terms with the fact and consequences of his drug taking; and

(g)    at [73], where it rejected the applicant’s evidence that he had recovered from a problematic pattern of cannabis use and held in the event that he is released into the community, there is a real risk that he will relapse into drug taking.

56    The Tribunal’s finding that the applicant’s cannabis use was significant to his mental health difficulties was plainly open to the Tribunal. In fact, before the County Court the applicant had accepted that there was a relationship between his offending conduct and cannabis use. He relied upon the North Western Mental Health report in his County Court appeal, and did not there argue against the report’s conclusions. The report records that in December 2016 the applicant was diagnosed as having suffered “an acute episode of drug induced psychosis that had residual symptoms”, and in July 2017 he was provisionally diagnosed with “adjustment disorder with depressive features and Cannabis use disorder”. The Tribunal’s finding was supported by the applicant’s submissions which relied on the North Western Mental Health report in support of an argument that his offending conduct took place in extenuating circumstances.

57    It was somewhat inconsistent for the applicant to attempt to downplay, before the Tribunal the significance of cannabis use to his mental health problems. In his evidence he said that on reflection he thought that perhaps the psychosis was more linked to his anxiety and depression, and that:

I’m not sure [if there was a connection between synthetic cannabis use and his hallucinations] but I was quite depressed actually because – and stressed about my like situation and already sad about - and I’m also sad my parents don’t love me anymore and also in 2015 like I need money for like you know pay rent and stuff and I call my mum and she said kill yourself, and then I feel having suicidal thoughts and called police and ambulance, was taken to hospital, this happened but I don’t know if there is much connection between that and after that I didn’t even have that drug like I hate it so much.

58    In relation to his asserted “recovery” from any cannabis problem the applicant said that he “might [have] had [a problematic pattern of cannabis use/a cannabis disorder] at that time but I’m quite recovered from that now. I don’t use it and I’m not sure if I had it anymore because I think I’m well now regarding…”

59    The Tribunal emphatically rejected the applicant’s evidence in this regard. It said (at [48]-[49]):

…In the context of drug use, he was reluctant to acknowledge that he had experienced a drug induced psychosis. He did not accept the professional assessment in the North Western Mental Health document that was before him. He sought to explain it away by saying that he no longer used any drugs and that he did not consider that he had a psychosis. He gave a disingenuous answer that he thought the Psychiatric Registrar was saying that he simply had these conditions because he had been using cannabis. He even went so far as to say he wasn’t using it when he saw her and only met her on two occasions. In effect, downplaying her professional opinion.

Further, to deflect the nature and effect of his use of drugs including cannabis, apart from reiterating that he had stopped using it long ago, he steadfastly denied that he had used it for very long, nor that it was problematic or that he really had a disorder, issue or dependency on drugs.

60    The Tribunal expressly accepted (at [73]) the diagnoses by North Western Mental Health and it did not accept that the applicant had recovered from his problematic history of cannabis use. It found that the applicant himself recognised a risk that he will relapse into drug taking when the Corrections Victoria assessment form was completed.

61    Third, it was not necessary for the Tribunal to take up the applicant’s language that he “hated” cannabis and had stopped using it, or to make a finding in that regard. As I have said, it is plain that the Tribunal understood the applicant’s claim that he had ceased using cannabis. Having regard to the Tribunal’s broad rejection of the applicant’s evidence in relation to his cannabis use it is not appropriate to infer that the Tribunal somehow missed and failed to consider this evidence. The more appropriate inference is that the Tribunal appreciated the applicant’s claims that he used cannabis for only a short time and that he no longer did so and his claim that he had recovered, but did not accept them.

62    Fourth, there is little force in the applicant’s contention that the Tribunal paid no regard to the evidence that the applicant had engaged in some drug abuse treatment, and failed to engage with that fact. The Tribunal made no reference to the applicant’s attendance at the Holyoake program but the applicant’s reliance on that omission is overstated. The Holyoake letter, the relevant part of which is set out at [35] above, shows only that the applicant completed a 12 week program which was predominantly alcohol and drug related. It did not say how extensive the program was, how many hours the applicant spent in it or anything about the extent to which, if it all, the applicant showed some recovery from his problematic pattern of cannabis use.

63    I am not persuaded that the absence of any reference to the Holyoake program shows that the Tribunal somehow overlooked it or missed the evidence in that regard. The more appropriate inference is that the Tribunal did not refer to the Holyoake letter because it did not consider it to be material to its decision. The Tribunal was not required to refer in its reasons to every piece of evidence and every contention made by an applicant: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]. There is no error in failing to refer to inconsequential evidence which could not be significant to the Tribunal’s decision: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [98] and [111] (Robertson J) cited with approval in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [67]-[70] (Kenny, Griffiths and Mortimer JJ).

64    Relatedly, I do not accept that the absence of any reference to the Holyoake program shows that the Tribunal failed to have regard to evidence of “any rehabilitation achieved by the time of the decision” and thereby failed to comply with Direction 65. The Holyoake letter is not evidence of “any rehabilitation achieved”. As I have said it says nothing about the extent to which, if it all, the applicant showed some recovery from his problematic pattern of cannabis use.

65    The applicant did not establish Ground 1.1.

Ground 1.2 - that the Tribunal paid no regard the time the applicant had spent in the community since his offending conduct

66    Ground 1.2 alleges as follows:

The AAT paid no regard to the time that the Applicant had spent in the community since the offending.

(a)    The applicant had spent approximately eight months and the community since he had last offended.

(b)    The applicant had not offended in that time. This was relevant to his rehabilitation.

(c)    The AAT had to apply the Ministerial Direction No 65 in determining the Applicant’s case. That Direction required the AAT to take the time spent in the community without offending into account.

67    The applicant relies on the fact that the Tribunal’s reasons do not refer to the period between early November 2016 and early August 2017, when the applicant was released on bail, during which time he did not reoffend. He notes that in that nine-month period he engaged with the Red Cross in relation to his physical and mental health, and he found employment with Mr Neil Correa who provided a positive work reference. He contends that the Tribunal was required to take this period into account before reaching the conclusion that “the risk of reoffending is the same today as it was in 2016” (at [74]).

68    The applicant also contends that the Tribunal did not comply with cl 11.1.2(3)(b)(ii) of Direction 65 which required it, when considering the risk to the Australian community, and the likelihood of the applicant engaging in further criminal or other serious conduct, to take into account “evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…”

69    The applicant argues that the Tribunal failed to exercise its jurisdiction, failed to engage in an active intellectual process and/or failed to give proper, genuine and realistic consideration to the evidence and submissions. He also contends that the Tribunal constructively failed to exercise its jurisdiction because it failed to comply with the requirement under Direction 65 which he says imports a requirement to give specific consideration to the time spent in the community since a visa applicant’s last offence.

70    On a fair reading of the Tribunal’s reasons I am not satisfied that the Tribunal made the errors alleged.

71    First, it is clear from the Tribunal’s reasons (at [19]) that it was aware that the applicant was released into the community in about November 2016, noting that the exact date was unclear on the evidence. The Tribunal expressly noted the fact of his release and also referred to the Red Cross letter which said that he was released from custody and receiving assistance from that organisation, including assistance in relation to accommodation.

72    Second, the requirement in cl 11.1.2(3)(b)(ii) of Direction 65 to give weight to time spent in the community since the visa applicant’s most recent offence is not a stand-alone requirement; it is part of the decision-maker’s assessment of the evidence of “any rehabilitation achieved” by the time of the decision. It was open to the Tribunal to see a period of nine months without offending as not constituting evidence of “rehabilitation achieved”.

73    On a fair reading of the Tribunal’s reasons it was not satisfied that the applicant had undertaken an appropriate rehabilitation program aimed at addressing his cannabis dependency, and had not recovered from his problematic pattern of cannabis use. Amongst other things the Tribunal:

(a)    at [48] and [73], rejected the applicant’s evidence that the handwritten response “cannabis” to the question in the Corrections Victoria assessment form in October 2017 was merely a mistake, and instead found that it showed the applicant himself recognised a risk that he might relapse into cannabis use. That is, it did not accept that he was rehabilitated;

(b)    at [74], found that the applicant had failed to admit let alone address his mental health problems;

(c)    at [84], found that the applicant had a “complete lack of insight into what caused his offending”, that he did not take responsibility for his offending conduct, and that he “has no insight into the serious nature of his conduct in its totality”; and

(d)    at [84], found that the applicant’s claim that his hallucinations had “suddenly stopped and that he had come to his senses” lacked credibility. The only treatment to which the applicant could point in relation to his drug dependency problems was his completion of the Holyoake program and the Holyoake letter said nothing about the extent to which, if it all, the applicant showed some recovery from his problematic pattern of cannabis use.

74    Relatedly, on a fair reading of the Tribunal’s reasons it was not satisfied that the applicant had undergone appropriate treatment for his mental health conditions, which fed into its analysis of the risk that he may reoffend. In his Statutory Declaration he did not refer to having had any treatment for his mental health problems but said that his hallucinations had ceased. The Tribunal noted (at (42]) that there was no evidence he had any treatment for his mental health conditions. His evidence was that he was only a risk to public safety for two or three weeks and then he “came back to [his] senses” (as the Tribunal noted at [41]). He said that he had decided at that point that he was not going to have any hallucinations in the future and they ceased to occur. The Tribunal found (at [84]) that “[t]he notion that in some way all his hallucinations had suddenly stopped and that he had come to his senses, amongst other things lacks credibility.” It found (at [74]) that the applicant suffers from significant mental health issues which have not been addressed and which bear upon the risk of him reoffending.

75    The Tribunal was required to make an evaluative judgment as to whether it was satisfied that there is a risk that the applicant, if he remains in Australia, would engage in criminal conduct. Contrary to the applicant’s submissions, the Tribunal did show some recognition of the importance of rehabilitation to the judgment as to that risk. The Tribunal said (at [84]-[85]) that the applicant's lack of insight into his drug problem "create[s] real concerns about whether he would be prepared to undertake rehabilitation or treatment outside of the supervised environment of the custodial system, either in prison or immigration detention" (emphasis added). The Tribunal did not though accept the applicant’s evidence regarding his use of cannabis, nor his claim to have recovered from a problematic pattern of cannabis use, nor that his mental health problems had resolved. It implicitly found that he was not rehabilitated.

76    On a fair reading of the Tribunal’s reasons it is not appropriate to infer that the Tribunal failed to give consideration to the time the applicant spent in the community between November 2016 and August 2017. The more appropriate inference is that the Tribunal made no reference to that short period of non-offending because it was inconsequential to its decision, particularly having regard to its rejection of his evidence regarding the extent of his drug use and that he had recovered, the absence of any real evidence of rehabilitation, and the applicant’s recognition in the Corrections Victoria assessment form that there was a continuing risk that he would again use cannabis.

Ground 1.3 - that the Tribunal paid no regard to the impact of the grant of a visa on the victim

77    Ground 1.3 alleges:

The AAT had no regard for the impact of the grant of a visa on the victim.

(a)    Ministerial Direction no 65 requires a decision-maker to take into account the impact on a victim of the decision to grant a visa.

(b)    A victim in this case had provided information to the Department of Home Affairs which was before the AAT.

(c)    That information ought to have been taken into account, either as a mandated requirement, or otherwise.

78    This ground is based in cl 12.3 of Direction 65 which provides that one of the “other considerations” for a decision-maker considering visa refusal is the “[i]mpact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour…”

79    The applicant relies on the fact that the Tribunal’s reasons made no reference to a letter from Mr Wahab, the applicant’s former housemate and the victim of the assault on 24 September 2016, which was before the Tribunal. The letter, dated 23 November 2017, said the following (without correction):

To whom it may concern

I have known [the applicant] for about 2 years. He was charged with threat to kill and recklessly cause injury against me it was just a misunderstanding between us that day and after that we patched up again and become friends again. I don’t have any issues with [the applicant] he is a good person and hard-working man and I wish him all the best in his life and wish that he should be released soon.

80    The applicant argues that there is nothing in Direction 65 which confines the Tribunal’s consideration only to any adverse impact on the community of a decision to grant a visa. He says that the letter shows that Mr Wahab is in favour of him being granted a visa, being a positive impact on the community, which the Tribunal was required to consider.

81    There is little force in this ground of the application.

82    First, pursuant to cl 11 of Direction 65 the primary consideration for the Tribunal was protection of the Australian community from criminal or other serious conduct. As part of that consideration the Tribunal was required to consider the nature and seriousness of the applicant’s offences: see cl 11.1.1. As another part of that consideration the Tribunal was required to consider the risk to the Australian community including the likelihood that the applicant would engage in further criminal or other serious conduct if he remains in Australia: cl 11.1.2(3)(b). The Tribunal was required to make an evaluative judgment regarding the risk to the Australian community.

83    The risk to be assessed was the risk to the community, not the risk to Mr Wahab. While Mr Wahab’s letter may be seen as relevant, it was, at best, peripheral. It is in vague terms and other than asserting that the applicant is a good and hard-working man, it says nothing about the risk of the applicant reoffending. The fact that a victim of criminal behaviour has reconciled with the perpetrator, or now takes a good view of him, carries little weight in deciding whether there is a risk to the Australian community more broadly.

84    Second, the Tribunal’s reasons show that it gave substantial consideration to whether there was a risk that the applicant would reoffend if he remains in Australia. It found (at [73]) that the applicant suffered from a drug induced psychosis at the time of his offending conduct, that his drug taking was far more extensive than he was prepared to admit, that he had not recovered from his problematic pattern of drug use and there was a risk that he would relapse into cannabis use, a risk which the applicant himself recognised in October 2017. It found (at [74]) that the applicant suffers from significant mental health issues which still exist, and that the applicant had failed to admit let alone address those issues. Based on those matters the Tribunal considered (at [83]) there was a “high probability” that the applicant would reoffend. It considered that the risk of repeat acts of violence was “comparatively high” if the applicants offending occurred during a mental health episode whilst under the influence of drugs or during the course of a drug induced psychosis. Given those findings, the fact that one of the victims of the applicant’s criminal conduct had reconciled with him, or had a good view of him, was not a matter of any significance to the Tribunal’s decision.

85    In the circumstances it is not appropriate to infer that the Tribunal failed to give consideration to Mr Wahab’s letter. The more appropriate inference is that the Tribunal did not refer to it because it was not inconsequential. But even if I am wrong in that conclusion I am not persuaded that any failure to consider the letter deprived the applicant of the realistic possibility of a successful outcome. The letter was so insignificant that the failure to take into account could not have materially affected the decision made: Hossain at [25] and [30].

Ground 2

86    Ground 2 of the application alleges the following broad ground and particulars, particularised by two sub-grounds:

The Administrative Appeals Tribunal decision was illogical and/or legally unreasonable.

For clarity I will describe the particularised sub-grounds as Grounds 2.1 and 2.2.

Ground 2.1

87    Ground 2.1 alleges:

The AAT was illogical or unreasonable in its decision that it could not be satisfied whether the applicant had suffered hallucinations in the past, and therefore whether those hallucinations reduced the applicant’s culpability and whether the applicant was credible.

(a)    The Applicant had expressed that he had been suffering hallucinations at the time of the offending;

(b)    The Applicant expressed that he no longer had hallucinations;

(c)    The limited evidence supported the Applicant’s assertions;

(d)    The AAT accepted that the Applicant had a drug induced psychosis but rejected his account of hallucinations. This finding was illogical or unreasonable in the circumstances.

88    This ground is based in the Tribunal’s reasons (at [43]-[44]), as follows:

No current medical report was in evidence from a healthcare professional such as a psychiatrist or psychologist. This is unfortunate and prevents the Tribunal from having the benefit of a professional opinion on the risk of potential recidivism.

In the absence of such a professional opinion, the Tribunal cannot accept the Applicant’s evidence concerning hallucinations one way or the other. That is, either as a means to explain his criminality or his assertion that he has not had any more. It makes the Tribunal’s task of assessing the risk of re-offending all that more difficult.

89    The applicant did not contend that the Tribunal should have obtained a current report from a psychiatrist or psychologist in relation to the applicant’s hallucinations.

90    In my view there is force in the applicant’s contention that the Tribunal’s finding that it could not accept, one way or the other, the applicant’s evidence concerning his hallucinations was illogical and legally unreasonable. There was a wealth of evidence before the Tribunal to show that the applicant suffered from hallucinations at the time of his violent offences in 2016, and no evidence going the other way. The Statutory Declaration detailed the development of his mental health problems including hallucinations (as set out at [29] and [30] above). The applicant was not challenged on that account and it was not put to him in cross examination that he had made up the hallucinations. The applicant’s account of suffering hallucinations was corroborated by:

(a)    contemporaneous Victoria Police and Melbourne Assessment Prison records in October 2016 (detailed at [37] above) including that he told police that “the mosque had stolen his soul”, that he was found unfit to be interviewed, that he appeared to be “delusional”, and was “profoundly psychotic”;

(b)    the fact that he was held in a psychiatric ward for two days whilst he was in custody;

(c)    North Western Mental Health’s assessment in December 2016 that he had suffered “an acute episode of drug induced psychosis”;

(d)    North Western Mental Health’s assessment in July 2017 that he was suffering from “vague hallucinations”; and

(e)    Judge Hannan’s description of the appellant in November 2017 as “someone with some real mental health difficulties”.

91    It appears that the only basis for the Tribunal’s doubt as to whether the applicant suffered hallucinations was a submission that by Ms Briffa, the solicitor appearing for the Minister before the Tribunal, that they were recent invention. That submission was the third alternative of the three submissions advanced by Ms Briffa, which the Tribunal summarised (at [57]-[59]) as follows:

Firstly, the Respondent contends that the offending concerned was caused by drug induced psychosis. The North Western Mental Health assessment is relied upon. The Respondent submitted that, on the evidence, the use of synthetic cannabis caused drug induced hallucinations. Therefore, there was an extensive period of cannabis use and certainly much more than the Applicant admitted to. The Respondent contended that the Applicant knew the drugs he was taking were illegal; or alternatively he wilfully shut his eyes to the legality or otherwise of the drugs he was taking and to the subsequent hallucinations that were caused by the use of the drug ingested.

Secondly, the Respondent contended that the Applicant had real mental health issues that significantly contributed to his offending. More likely than not, the same mental health issues exist today and the risk of re-offending is the same today as it was at the time. In support of this argument, it was highlighted that the Applicant has been unable to point to any significant or real change in his condition. This is of course is amplified by the fact that there is no current professional opinion in evidence before the Tribunal from a recognised healthcare professional.

Thirdly, the Respondent contended that there were no hallucinations at all. In support of this submission was the fact that he was searchingly cross-examined and could not provide a rational explanation of their cause (insofar as he was able to do so) and their manifestations. The argument developed was that had the Applicant asserted in his initial contacts with the police that he was suffering from hallucinations, they would have been very unlikely to have granted him bail. He would have been brought before a court. Then quite possibly detained for examination by a suitably qualified mental health professional. Therefore, the issue of hallucinations had subsequently been advanced as a way of diminishing the effect of his offending. It was also asserted that the fact that he gave evidence that they have just stopped, would tend to indicate more likely than not that they were a recent invention.

92    The last alternative submission had no basis in the evidence, and it should have been rejected by the Tribunal. As I have said, there was an abundance of contemporaneous evidence to corroborate the applicant’s claim that he suffered from hallucinations at the time of his violent offences, and no evidence to indicate that he had not. Ms Briffa’s submission that, had the applicant asserted at the time that he was suffering hallucinations, it was “very unlikely” that he would have been granted bail had no basis in the evidence. The applicant was not immediately granted bail following his offences. Instead he was held in custody for more than a month, he was assessed by mental health staff employed at the Melbourne Assessment Prison and he spent two days in a psychiatric ward. He was not released on bail until early November.

93    As the Full Court in Sabharwal said (at [45]):

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is "whether a decision-maker could reasonably come to the conclusion" reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

94    I consider the Tribunal’s conclusion that it could not accept, one way or the other, the applicant’s evidence that he suffered from hallucinations at the time of his offending conduct was legally unreasonable and irrational, particularly when it accepted that he was suffering from a cannabis induced psychosis at the time of the offending. In my view a reasonable decision-maker would have accepted that the applicant suffered hallucinations at that time.

95    But a finding of jurisdictional error is the expression not simply of the existence of error but of the gravity of that error: Hossain at [25]. For the Tribunal’s error to rise to the level of jurisdictional error it must have deprived the applicant of the realistic possibility of a successful outcome, and in my view it did not.

96    First, the Tribunal did not reject the applicant’s claim to suffer from hallucinations, it only said that it could not be satisfied either way that he had suffered from them.

97    Second, and more fundamentally, the Tribunal did not refuse the applicant’s visa application on the basis of an erroneous conclusion that his account of suffering hallucinations at the time of his offending was a recent invention. The Tribunal’s decision that there is a risk that the applicant will reoffend if he remains in Australia was based in its findings:

(a)    at [73], that the applicant suffered from “a drug induced psychosis” at the time of his offending conduct, that the Tribunal considered his history of cannabis use was far more extensive than he was prepared to admit, and that it considered there was a real risk that he will relapse into cannabis use, which risk he himself recognised in October 2017; and

(b)    at [74], that the applicant is suffering from “significant mental health issues” which still exist, and that the risk of reoffending is the same today as it was in 2016 because the applicant had not admitted, let alone addressed his mental health conditions.

It was not based in any conclusion that the applicant did not suffer hallucinations at the time of his offending conduct.

98    Third, the applicant’s evidence and submissions that he suffered from hallucinations at the time of his offending conduct was directed at showing that he had reduced culpability for the offences. The Tribunal expressly accepted that he suffered from a cannabis induced psychosis and had serious mental health issues at the time of his offending conduct, but did not accept that outweighed the factors in favour of visa refusal. The issue as to whether or not the applicant suffered hallucinations at the time of his offending conduct is peripheral when that is remembered.

99    In passing I note that I take a different view in relation to the Tribunal’s conclusion that it could not accept, one way or the other, the applicant’s assertion that he no longer suffered from hallucinations, but little turns on that. Other than the applicant’s assertion there was little to show that his hallucinations had stopped, and some of the evidence was conflicting. In my view the Tribunal’s conclusion that it was not satisfied, one way or the other, that the applicant’s hallucinations had ceased was open on the evidence.

Ground 2.2

100    Ground 2.2 alleges:

The AAT was illogical or unreasonable in its rejection of the Applicant’s account of his synthetic cannabis use and making adverse credibility findings on this basis.

(a)    The Applicant had claimed to have used synthetic cannabis for a period of months in 2016. The AAT found that his use was more extensive than that. This was based on the DSM-V diagnostic criteria for a ‘cannabis use disorder’ requiring a 12 month period of symptoms. This finding was illogical and/or unreasonable because the Applicant was only ‘provisionally’ diagnosed.

(b)    The Applicant claimed to have thought that synthetic cannabis was legal as he had bought it at a shop. The Applicant’s account was rejected and adverse reliability and credibility findings were made. The information before the AAT showed that it was not clear whether synthetic cannabis was legal or illegal in 2016. To make adverse findings was therefore unreasonable or illogical.

101    In relation to Ground 2.2(a), the applicant contends that the Tribunal’s findings (at [49] and [73]) that the applicant’s cannabis use was far more extensive than he was prepared to admit was based in large part on the cross-examination of the applicant by Ms Briffa. The transcript shows that in cross examination the applicant was taken to:

(a)    the provisional diagnosis of “adjustment disorder with depressive features and cannabis use disorder” made by North Western Mental Health in July 2017;

(b)    the DSM-V diagnostic criteria for cannabis use disorder; and

(c)    the contention that the diagnostic criteria for cannabis use disorder requires “a problematic pattern of cannabis use leading to clinically significant impairment or distress, as manifested by at least two of the following occurring within a 12 month period”.

It was put to the applicant that the doctors at North Western Mental Health assumed, or he had told the doctors, that he had been using cannabis for longer than he had said in evidence. The applicant could not know what his doctors might have assumed and he responded only by saying that he could not recall what he had told the doctors and by denying that he used using cannabis for longer than he had said.

102    The applicant says that cross examination was unfair because North Western Mental Health’s diagnosis was provisional, it had only seen him on two occasions over about an eight month period and a provisional diagnosis is not a final diagnosis. He submits that the Tribunal’s finding that the applicant used cannabis more extensively than he had admitted could not be made on the basis of that cross examination, and that its finding was illogical and unreasonable insofar as it did not take into account the provisional nature of the diagnosis when concluding that his cannabis use was more extensive than he admitted.

103    There is little substance in this ground of the application.

104    The Tribunal’s task was to decide whether there was a risk that the applicant would commit further offences if allowed to remain in Australia. In the circumstances of the case that involved an evaluative assessment taking into account, amongst other things: the extent of the applicant’s past cannabis use; whether the applicant had a problematic pattern of cannabis use; whether the applicant’s cannabis use was linked to his offending conduct; whether the applicant had ceased using cannabis; whether the applicant had recovered from any problematic pattern of cannabis use; and whether there was a risk that the applicant would relapse into cannabis use if released into the community.

105    There was some unfairness to the applicant in questioning the applicant on the diagnostic criteria for cannabis use disorder but that questioning did not advance the Minister’s case and it does not have the significance which the applicant now seeks to give it. On a fair reading of its reasons the Tribunal’s finding that the applicant’s cannabis use was more extensive than he admitted was not based in that cross examination. Rather it was based in its broad rejection of the applicant’s evidence about the extent of his drug use, its view as to the credibility of his evidence regarding drug use, the fact that the applicant was diagnosed in December 2016 as having suffered from a drug induced psychosis, its view that North Western Mental Health’s assessment was consistent with the applicant’s drug use identified in the course of the evidence, the Corrections Victoria assessment form which records the applicant as self-reporting that cannabis might be an issue for him upon release from custody, and Judge Hannan’s decision in November 2017 to impose a CCO that included specific conditions regarding assessment and treatment for drug abuse or dependency. The conclusion that the applicant’s drug use was more extensive than he admitted was open to the Tribunal on the evidence before it.

106    In relation to Ground 2.2(b) the applicant relies on the Tribunal’s finding (at [50]) that the applicant sought to downplay or diminish the gravity of his cannabis use by saying that he thought that synthetic cannabis was legal, because he had openly bought it at a shop on Sydney Road, Brunswick. Essentially he said that he knew that Australia was strict on drugs and if synthetic cannabis was being sold in a shop it must have been legal. The Tribunal said:

He stated he was not aware of whether it was legal or illegal. It appears that he had little regard to the legality of his actions. This attitude again demonstrates the unreliability of the evidence given by the Applicant and his tendency to seek to explain away his conduct in a way that does least damage to, or otherwise promotes, his case. It reflects badly on his credibility.

107    In cross-examination Ms Briffa put the Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids) Regulations 2011 and 2013 (Vic) to the applicant, which she said ‘suggested’ that in 2012 and 2013 a number of synthetic cannabinoids were made illegal in Victoria. She questioned the applicant as to what, other than the fact that he could buy synthetic cannabis in a shop and get a receipt for the purchase made him think the drugs were legal. Ultimately she submitted that the amending regulations showed that it was not “entirely clear” that the synthetic cannabis the applicant took was legal, and “in fact they were most likely illegal, and the applicant was either wilfully blind [to] that or knew that”.

108    It was unfair in my view to cross-examine the applicant, who is not legally qualified, in relation to the legal effect of amendments to the regulations, which effect was not in any event clear. There was no evidentiary foundation for the submission that the relevant synthetic cannabis was most likely illegal. But nothing turns on that.

109    The applicant argues that it was illogical for the Tribunal to find that synthetic cannabis was illegal at the time and to base adverse reliability and credibility findings on that. He contends that the Tribunal could not know which type of synthetic cannabis he used and it was not established that it was illegal. There is some force in the applicant’s contentions. There is no evidence as to what type of synthetic cannabis the applicant purchased, and nothing to show that all synthetic cannabinoids were illegal at the time the applicant was using such drugs. There was accordingly no basis for a finding that the applicant was taking illegal drugs. But the Tribunal did not make a positive finding that the synthetic cannabis the applicant used was illegal. Essentially the Tribunal found that the applicant did not seem to care whether the cannabis he used was legal or not. That finding was open to the Tribunal in my view.

110    In any event, the finding was peripheral to the Tribunal’s decision to refuse to grant the applicant a visa. I have previously set out the central bases for the Tribunal’s decision and I need not reiterate them.

Conclusion

111    Having regard to the above, it is appropriate to dismiss the application for judicial review and to order the applicant pay the Minister’s costs.

Associate:

Dated:    30 October 2019