FEDERAL COURT OF AUSTRALIA

XFCS v Minister for Home Affairs [2020] FCA 71

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made under s 500(1)(ba) of the Act on 20 February 2019.

2    The applicant was born in, and is a citizen of, Croatia. He left Croatia in 1995, living in refugee camps in Kosovo and Serbia before moving to Australia on 26 February 2003.

3    The applicant has an extensive criminal record, which commenced in 2005, and which largely involved violent offending, property offences and driving offences.

4    On 15 March 2018, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision on the same day and was invited to make representations about the revocation of the decision to cancel his visa. The applicant made representations in response to that invitation.

5    On 27 November 2018, a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act. On 28 November 2018, the applicant was notified of the delegate’s decision and provided with a copy of the decision and the attachments thereto.

6    On 30 November 2018, the applicant applied to the Tribunal for review of the delegate’s decision under s 500(1)(ba) of the Act. On 20 February 2019, the Tribunal affirmed the delegate’s decision.

7    On 21 March 2019, the applicant filed an originating application in this Court seeking review of the decision of the Tribunal. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his originating application is a writ of certiorari quashing the decision of the Tribunal not to revoke the cancellation of the applicant’s visa.

8    The originating application states six grounds of review. However, in written submissions filed on 11 June 2019, the applicant stated that he only pressed the first ground of review substantively, which is in the following terms:

The Tribunal erred in law by ignoring relevant material, failing to deal with the Applicant’s claims as put, or by failing to give proper, genuine and realistic consideration to the decision.

9    The particulars to that ground of review allege that the Tribunal failed to consider submissions advanced on behalf of the applicant (which were contained in an email from the applicant’s lawyer to the Tribunal dated 6 February 2018 accompanied by supporting country information), to the effect that if he were returned to Croatia:

(a)    irrespective of the applicant’s ability to be understood, his ability to comprehend Croatian, the language spoken by the majority of people in Croatia, was likely to be limited;

(b)    the applicant’s identity as an ethnic Serb, particularly a post-war returnee, would expose him to discrimination that would severely reduce his employment prospects and put him at risk of social and economic exclusion and “extreme poverty”; and

(c)    country information suggested that constitutional protections against discrimination on the basis of ethnicity were ineffective.

10    The applicant formally maintained the second ground of review, which involved a challenge to the Tribunal’s finding that the applicant was a Croatian citizen. However, Counsel for the applicant did not advance any submissions in support of the ground, conceding that the applicant could not adduce evidence that would negate the Tribunal’s finding that the applicant was a citizen of Croatia and that, in the absence of such evidence, the Court must dismiss that ground of review. Counsel indicated that the applicant was still pursuing the question of Croatian citizenship through the Croatian embassy.

11    For the reasons that follow, I dismiss the application for review.

Factual Background

12    The following summary of the factual background is largely taken from the decision of the Tribunal.

13    The applicant was born in Croatia to Serbian parents in March 1989. His family was affected by the outbreak of war in Croatia following the disintegration of the former Yugoslavia (AAT reasons [19]).

14    The applicant stated that his family’s home was burnt down in 1995 or thereabouts. His father was also shot in the conflict. The applicant apparently observed these events as a young boy (AAT reasons [20]).

15    As a result of the conflict in Croatia, the applicant’s family decided to flee. They travelled by tractor to Serbia. They remained there for some time until they eventually resettled in a refugee camp in Kosovo. They remained in Kosovo for another four years. Conflict ensued in Kosovo in approximately 1999. Once again, given the conflict that emerged, the family returned to Serbia (AAT reasons [21]).

16    The conditions which the family endured throughout this period after leaving Croatia can be best described as spartan. They resided in several refugee camps and frequently the entire family was living in a very small room (AAT reasons [22]).

17    Eventually, in December 2002 the family were granted refugee visas for Australia. They first arrived in 2003 having spent most of the previous eight years in refugee camps either in Serbia or Kosovo. Throughout this time, the applicant had witnessed and lived through difficult times which included conflict and war hardship, which has left the applicant with some level of trauma (AAT reasons [23]).

18    The family’s first residence in Australia was in Burnie in Tasmania. They remained there for approximately one year before they moved to Melbourne in the greater Dandenong area as a result of various friendships that they had within the Serbian community (AAT reasons [20]).

19    The applicant’s father, it appears, was frequently violent to both his children and his wife. The applicant’s mother and her husband separated in approximately February 2004. Their eldest son left home in approximately 2006. Later the applicant left home and led a somewhat itinerant lifestyle. In terms of accommodation, he engaged in the practice of what he described as “couch surfing”. The evidence of the applicant and his mother was that this had an effect on the applicant to the extent that he stopped attending school in approximately 2005 (AAT reasons [25]).

20    As mentioned above, the applicant has an extensive criminal record, which commenced in 2005. Although lengthy, it is appropriate to reproduce the AAT’s findings with respect to the applicant’s offending (errors in original):

33.    The first offending, for which he was dealt with in the Children’s Court in August 2005, was for false imprisonment, assault with a weapon, assault in company and unlawful assault.

34.    In September 2006 he appeared again in Children’s Court and was dealt with for, amongst other offences, several charges of theft, recklessly causing injury, failure to answer bail and intentionally causing injury.

35.    There were further court appearances for sundry charges, again in 2006 and twice in 2008.

36.    In June 2009 the Applicant appeared in the County Court in Melbourne and was convicted of, amongst other charges, breach of an intervention order, false imprisonment, possession of a prohibited weapon without approval, intentionally causing injury and recklessly causing serious injury. He received an aggregate of 12 months imprisonment, 11 months of the sentence was to be served concurrently with another sentence imposed. He was also fined.

37.    On the same day in June 2009 the Applicant was convicted of the charges of aggravated burglary with an offensive weapon, aggravated burglary when a person was present and intentionally causing injury. He was sentenced to a total of 30 months imprisonment with several of the offences carrying concurrent prison terms. Unfortunately, the reasons of the sentencing judge in the County Court in 2009 were not available to the Tribunal.

38.    In 2012 and 2013 the Applicant had further appearances in the Magistrates Court concerning driving whilst suspended, for which he was imprisoned. The material before the Tribunal, it should be observed, records that the Applicant has never held a driver’s license and has over the years been convicted of several driving offences including 13 charges of either driving whilst suspended or unlicensed driving. This conduct reveals a continuing and flagrant disregard for the law. It is a tendency that does not reflect well upon the Applicant.

39.    The Applicant’s first offending for which he was dealt with in August 2005 when he was 15 or 16 years old at the Children’s Court, was for false imprisonment, assault with a weapon, assault in company and unlawful assault. The Applicant, when in the witness box, stated that he had a limited recollection of this matter. There is also reference to that offending in the report of Dr Mark Ryan a Forensic Psychiatrist from the Victorian Institute of Forensic Mental Health dated 4 July 2008, prepared pursuant to a request made by the presiding Magistrate at the Dandenong Magistrates Court. The Applicant recalled that the incident concerned occurred when he briefly worked at the Dandenong “Hungry Jacks” hamburger outlet. The Applicant and a fellow employee chased another female work colleague (who was apparently relatively young) to the point that she was so scared that she locked herself in the change room and the police were called. As was recorded in Dr Ryan’s report, the Applicant was present when the crime was committed but he denies being the perpetrator of the violence. He was a friend of the person who did. The Applicant did concede that he chased the female worker. In the witness box he expressed regret for the incident and stated that he wished he could turn his life back. He stated that there was no explanation for what he did and categorised it as “disgusting behaviour”. He stated that after that incident he lost his job with Hungry Jacks and to some extent his life went downhill after that.

40.    The Hungry Jacks offending revealed a tendency on the part of the Applicant to either resort to or be present during acts of violence. It also demonstrated an unacceptable attitude to women, particularly young women. That a young woman, let alone any woman, is subjected to this behaviour, including acts of violence, is unacceptable. The Tribunal notes that the Applicant’s offending arising in the course of the Hungry Jacks incident was both violent within the meaning of paragraph 13.1.1(a) of the Direction, and also a crime committed against a vulnerable member of the community, being a young woman, within the meaning of paragraph 13.1.1(b) of the Direction.

41.    The next incident for which the Applicant was dealt with by the Children’s Court was an incident where the Applicant was found to have intentionally caused injury when he was approximately 16 or 17 years of age by assaulting a victim with a hammer. This incident is also referred to in the report of Dr Ryan of 4 July 2008. Dr Ryan reported that the Applicant assaulted someone with a hammer because he had “looked at my girlfriend”. This incident was explored in cross-examination of the Applicant. He stated that the incident occurred at a skate park when the victim was looking at his girlfriend. He stated that the victim was “smirking, smiling and making comments”. The Applicant stated in the witness box that he then called several of his friends who arrived at the skate park by car. When one of those friends arrived he arranged for the friend to open the boot of the car and took a hammer from it. Armed with the hammer, he then struck the victim in the head. He stated he did not know if the victim had suffered any injuries. The Applicant further stated from the witness box that he was “probably drugged up at the time”. Additionally, he gave evidence that he was not completely certain what happened and that back then he didn’t think much about the consequences of his actions. When the details of his appearance at the Children’s Court in September 2006, as recorded in the National Police Certificate, were put to him, he conceded that that was probably the court appearance relating to the skate park incident where he struck the victim with a hammer.

42.    Following his appearance in the Children’s Court in September 2006, the Applicant had three further appearances in 2006 and 2008 in the Children’s Court. Those offences involved dishonesty, theft, possession of and/or receiving stolen goods and breach of a good behaviour bond.

43.    The Applicant was then convicted in June 2009 at the Melbourne County Court and sentenced to an aggregate of 12 months imprisonment. The sentencing judge’s reasons were not in evidence before the Tribunal. These convictions concerned offences he committed against his former girlfriend including false imprisonment and recklessly causing serious injury. There is reference to the charge of assault against his ex-girlfriend in the report of Dr Ryan. There was also a Victoria Police “LEAP” Summary Report concerning the incident itself in the evidence before the Tribunal.

44.    From the evidence given by the Applicant and the documentary material before the Tribunal, it is possible to establish the factual matrix concerning this offending. At the time of this offending the Applicant was subject to an Intervention Order which presumably prevented him from contacting or approaching the victim in the way that such orders are normally framed.

45.    The Applicant stated that the day before the incidents concerned, he had an argument with his former girlfriend. His evidence to the Tribunal was that “she was being smart over the phone and I told her not to, she kept on doing it”. The victim was going about her business in Frankston driving her car on 18 March 2008 and stopped at a traffic light. The incident occurred according to the police report at 6:40AM, and certainly on the Applicant’s evidence, as the victim was on her way to work. The Applicant was present at the same intersection. His evidence was that he was waiting at the traffic lights also. He said that he jumped into her car from an unlocked side passenger door. He stated that when he got into the car he slapped her. His evidence to the Tribunal was that it was “not a big slap. Just an assault to the face”.

46.    The police report stated that the Applicant was holding a “large black Maglite” (which is a torch) and punched the front of the vehicle’s dashboard with his fist, instructing the victim to continue driving. The Applicant in his evidence stated he didn’t think he had the torch. The Tribunal does not accept this evidence on the part of the Applicant. The contemporaneous records taken by the Victoria Police are more inherently likely to be reliable rather than the Applicant’s memory which from time to time was not good. It should be recalled, much of the offending concerned occurred whilst the Applicant was under the influence of drugs or had been taking them comparatively recently. Therefore, the likelihood of his recollection being faulty is higher. The Applicant then refused to allow the victim to go to work and forced her to drive to various locations throughout the day including the Churchill National Park and other locations in the greater Dandenong area.

47.    The Applicant readily conceded in the witness box that the victim was held against her will. He also gave evidence that the victim was crying and asking him to let her go. He stated that he then let her go not long after lunchtime. He further stated that he let her go after her friends from work called up and asked him if he could release her. The police report reveals that the Applicant and the victim were in the vehicle near the Dandenong Court when he then fell asleep. The victim then was able to use the phone to contact her family and advise them of her whereabouts. The police report also records that the Applicant awoke during the phone calls and after the victim pleaded with him they drove to the victim’s mother’s work address, whereupon she was ultimately released. The Applicant said he didn’t remember saying anything to the victim’s mother or her mother having any involvement. Once again, the Tribunal cannot accept the Applicant’s evidence on this issue.

48.    This incident must have been horrifying for the victim. On whichever version of events are accepted, the Applicant’s acts were violent and certainly within the meaning of paragraph 13.1.1(a) of the Direction. They were violent acts against a young woman who was clearly vulnerable within the meaning of paragraph 13.1.1(b) of the Direction. The fact that an Intervention Order had been previously imposed against the Applicant to prevent him contacting the victim demonstrates that a Magistrates Court considered the victim to be in a vulnerable position vis-a-vis the Applicant.

49.    The nature and seriousness of the Applicant’s offending on this occasion is also amplified by the fact that it was in blatant defiance of the terms of an Intervention Order. This defiance of the terms of the Intervention Order occurred after the Applicant had, by then, several encounters with courts and criminal justice processes. He must have known full well what he was doing. The disregard for orders of the court and such criminal justice processes does not reflect well upon the Applicant.

50.    The sentence imposed on the Applicant for these offences was an aggregate of 12 months imprisonment. As required by paragraph 13.1.1 of the Direction, the Tribunal takes this sentence into account. The sentence reflects the gravity and seriousness with which the sentencing judge of the County Court viewed the Applicant’s offending.

51.    Further offences were committed by the Applicant on or about 18 July 2008. Police observed the Applicant driving on the Princes Highway in Dandenong on that day. They were aware that the Applicant had never held a license. The police executed a search warrant shortly thereafter at premises situated on the Princes Highway, Dandenong. The Applicant was found to be in possession of the drug “ice” and associated drug paraphernalia. A search was also conducted of the premises which resulted in police finding a large set of keys and a toolbox. The keys included car keys and security keys. Particularly coloured security keys. The coloured security keys had been stolen approximately two weeks previously from an RACV Battery delivery van parked outside premises in Blackburn South.

52.    Further offending on the part of the Applicant that involved violence occurred on 2 August 2008 when the Applicant forced his way into the room of a person living at premises in Dandenong. Once again, he was in possession of the metal torch which he apparently used to strike a person present at those premises. He was convicted of aggravated burglary with an offensive weapon, aggravated burglary when a person was present, and two charges of intentionally causing injury to two separate individuals who were on the premises at the time.

53.    The reasons for sentence in the County Court of Victoria for these offences are also not before the Tribunal. However, they are again crimes of violence and involved a serious violation of the victims’ rights. In the context of the Direction, particularly paragraph 13.1.1(c), the Court imposed a period of imprisonment of 30 months for the aggravated burglary with an offensive weapon charge and 30 months imprisonment for the aggravated burglary with the person present, 24 months of which was to be served concurrently with the earlier sentence. The sentence imposed for the two charges of intentionally causing injury were 12 months imprisonment on each count, to be served concurrently with the first term of imprisonment. The sentence obviously reflects the seriousness and gravity with which the sentencing judge of the county Court considered the Applicant’s offending.

54.    The most recent offences committed by the Applicant which have resulted in him serving a lengthy jail term are described in some detail in the Reasons for Sentence of Judge Sexton of August 2014, which are in evidence before the Tribunal.

55.    There were two indictments before the Court upon which Judge Sexton sentenced the Applicant. The first indictment concerned three charges upon which the Applicant was convicted after a jury trial. Those charges were one charge of common assault and two charges of blackmail.

56.    Judge Sexton in her reasons stated that she was satisfied of the facts described in her reasons from the evidence adduced at the trial which she considered were consistent with the verdicts of the jury. There was one fact in particular, or series of facts, which the Applicant hotly contested that was referred to in the sentencing judge’s reasons. This was the question of whether or not the Applicant had produced a sawn-off shot gun, as observed by the judge in her reasons. This will be addressed later.

57.    The relevant facts arising from the first indictment upon which the Applicant was convicted on three charges were as follows:

(a) In or about November 2011, one “MF” owed the Applicant $1500 for a drug debt;

(b) On 23 December 2011, the Applicant attended the house of one “DK” endeavouring to find MF. MF was hiding from the Applicant and DK informed the Applicant that MF was not present;

(c) The Applicant returned to DK’s house later that night and told him that the debt was “transferred” to him;

(d) On 25 December 2011, the Applicant informed DK that he could clear the debt by bringing MF to him and arrangements were made to meet later that night;

(e) DK brought MF to the prearranged meeting place but when he realised what was occurring ran away;

(f) As MF was running away the Applicant arrived with another individual and chased him;

(g) The trial Judge stated the Applicant produced a sawn-off shot gun which was seen by DK, whereas MF gave evidence that he saw a long object held by the Applicant or the other person present;

(h) The Applicant returned the gun or the long object, to his car and either the Applicant or his accomplice struck MF on the side of the head causing him to fall to the ground (Charge 1-common assault);

(i) MF was able to get up and escape and the Applicant, in company with DK, drove around the neighbourhood looking for him but he could not be found;

(j) The Applicant then informed DK that the debt was now clear, and told him what he had done to hurt many people previously;

(k) On 26 December 2011, the Applicant telephoned DK and informed him that the debt was revived and it increased in value to $6,000 (Charge 2-blackmail);

(l) Subsequently, the Applicant continued to contact DK attempting to obtain payment and informed him that the debt was increasing;

(m) The Applicant then attended at DK’s house and produced the shotgun, advising the debt was now $10,000 and demanding that he report his car stolen, make an insurance claim, and pay the $10,000 from the insurance proceeds (Charge 3-blackmail);

(n) On 4 January 2012 the Applicant demanded that DK attend a Dandenong address where several men were present in the garage including one “MK”;

(o) DK was told to sit on a chair and was then punched by the Applicant;

(p) The Applicant and MK stood over DK whilst he remained in the chair repeating demands for $10,000;

(q) After the Applicant had punched DK, MK threatened DK with a wrench and then tapped him lightly on the head with it, the Applicant and MK then attempted to drag him from the garage through a back door;

(r) MK was sufficiently frightened by the behaviour of the Applicant and MK that he escaped by slipping out of his upper clothing and running out of the garage through the front roller door.

58.    Judge Sexton found that there were several features of the offending which made it more serious. These included the fact that there were several threats made against the victim in his own home, the menacing behaviour with a gun (or if the Applicant’s version of events is to be believed, a piece of wood or iron bar), and the making of demands reinforced by menaces as occurred in the garage.

59.    Judge Sexton concluded in her reasons that she was satisfied on the evidence contained in DK’s original statement that the Applicant did produce the shotgun on two occasions. She was also reinforced in this conclusion because references to the shotgun were contained in the original statement made by that individual which was connected to the charges on which the jury convicted the Applicant. The reasons also explained that the victims of the Applicant’s actions were very frightened by what happened. Her Honour observed that DK was sufficiently frightened by the Applicant’s threats to move out of his home to stay first at his then girlfriend’s house, and then another friend’s house, in order to avoid the Applicant….

60.    In terms of the seriousness of the Applicant’s offending with respect to the offences contained in the first indictment, the maximum sentence fixed by Parliament should not be forgotten. Blackmail is an offence with a maximum sentence of 15 years imprisonment. Common assault has a maximum sentence of five years imprisonment.

61.    The Applicant pleaded guilty to 3 charges on the second indictment before Judge Sexton which were for one count of theft, intentionally causing injury and blackmail.

62.    In early March 2012 the victim owed some money to two men who were associates of the Applicant. The victim obtained a laptop computer with a view to selling it to the Applicant. Upon completion of such sale to the Applicant, the victim intended to use the funds derived to satisfy his debt to these two individuals. The laptop did not work. When the Applicant found out the laptop did not work he demanded that the victim attend his residence.

63.    The victim complied with the demand in company with two others. Upon doing so, the Applicant stated “You get bashed a lot don’t you”. He further stated “Do you know anyone with guns?” The Applicant then searched the victim’s car taking various belongings. The two associates to whom the victim owed money then arrived at the Applicant’s home. The Applicant took the victim’s car for a drive before returning and removing a baseball bat. The Applicant returned to the lounge room and struck the victim on the head with the baseball bat hitting him in the face; breaking some of his teeth and making him bleed from the mouth. The victim then fell to the floor near the couch and the Applicant started to punch him in the face shouting at him because he was bleeding on the couch. The victim recalled three punches to the left side of the head and two slaps to the face.

64.    The Applicant then provided the victim with a cloth to wipe his face and then wiped his couch. He stated “How about I break your legs so you can’t walk out of here”. This threat was made whilst he was holding a baseball bat against his thigh. The victim apparently pleaded for the Applicant not to. The Applicant then flicked and punched the victim again on the back of the head.

65.    The Applicant then demanded $5000 from the victim and his vehicle for himself and a further $2000 for one of his two associates. The Applicant threatened the victim and told him not to report the matter to the police. The victim stated that he would not and that he would borrow money from his family the following morning. The Applicant said words to the effect that he had until only midnight to produce the money.

66.    The victim received lacerations to the inside of his mouth, split lip, bruising to his face and crown root fractures to 2 teeth. There was other damage caused to one of his other teeth and he required root canal treatment with crowns on two of those teeth.

67.    The Applicant was arrested the following day by the Special Operations Group and has been in custody ever since.

68.    Blackmail, as noted earlier in these reasons, carries a maximum sentence of 15 years imprisonment; and intentionally causing injury has a maximum sentence of 10 years imprisonment. Once again these maximum sentence provisions reflect the gravity with which Parliament views such offending.

69.    Judge Sexton, in her reasons, stated that the offences of causing injury and blackmail were made more serious by the Applicant’s use of the baseball bat as a weapon to cause injuries. She further described it as an act which was also part of the menacing behaviour that he engaged in to frighten the victim into complying with his demands for money.

70.    The Judge stated that she was satisfied the injuries sustained by the victim were “at the higher end of the scale”. She also found that the victim had suffered considerably. Further, she noted that the victim feared for his life when he was in the Applicant’s home.

71.    For these offences collectively the Applicant was sentenced to a total of 5 years and 10 months imprisonment with a minimum non-parole period of three years.

72.    There are some other comments made by Judge Sexton in her reasons that should be noted. Firstly, she stated that the Applicant, for a young man, has a very bad criminal record. She also considered the question of whether the Applicant was intellectually impaired. She considered that if he was intellectually impaired, she was not persuaded that it reduced the moral culpability of his offending conduct.

73.    The importance of general deterrence in cases of blackmail were emphasised by the judge. She emphasised the need for protection of the community, which gave rise to the need for specific deterrence.

74.    On the question of the likelihood of the Applicant reoffending, the Judge concluded there was “a high risk” of that occurring, but it would be lessened if he remained free of drugs and received treatment for drug addiction and personality disorders.

75.    In the context of the relevant paragraphs of the Direction, with respect to the matters for which the Applicant was sentenced in 2014, several things are applicable. In each instance of offending recounted there was not only violence but a pattern of threats, and in the case of the first indictment, threats over some days that culminated in the events that took place in the garage. The thoroughly unacceptable behaviour of transferring the debt to a third party in the threatening manner that it was warrants attention. Also, there was the production of a weapon, whatever it may have been. Of further note was the intimidating, or as the Judge described it the “menacing” behaviour that the Applicant engaged in.

76.    The resort to the baseball bat in the circumstances was exceptionally violent. Another feature of the Applicant’s offending surrounding the incident with the baseball bat is that there was the element of him assisting two friends (or associates) in the way that he did. He should not have been involved. Yet he readily intervened. It does not reflect well upon him.

77.    The Tribunal observes that the frequency of the Applicant’s offending, which is a relevant consideration by reason of paragraph 13.1.1(d) of the Direction, is of concern. There has been a trend of increasing seriousness which is apparent from the account of the Applicant’s offending over the years which has been given in these reasons. One might have thought, after his 2009 appearance in the County Court and subsequent imprisonment, that he might have learned his lesson. Unfortunately, he did not. The victim of the incident with the baseball bat suffered terrible injuries as the result of an act of wanton violence and a blatant attempt to stand over an individual to extract a financial gain. It was mindless thuggery and is completely unacceptable.

78.    The Respondent, in support of its contentions concerning the nature and seriousness of the Applicant’s conduct and offending, has also relied upon the Applicant’s conduct in prison and immigration detention. The Respondent contends that the conduct of the Applicant in prison and immigration detention is such that it shows a tendency to disregard the law and is further evidence that the Applicant represents too great a risk of harm to justify his visa being reinstated.

79.    To the Applicant’s credit, he did admit most of the matters that were alleged and referred to in the prison records that were in evidence before the Tribunal.

80.    The Applicant admitted to returning at least two positive urine samples whilst in prison. Those positive samples were for drugs. He readily conceded that he had been taking drugs when he was in prison. He admitted that for returning positive urine samples for drugs that he was convicted at a Governor’s hearing in the prison.

81.    He also agreed that in August 2015 he had punched a prisoner in the face, knocking him to the ground and causing him some injury. Apparently, this incident was as a result of a long-standing feud or disagreement between that prisoner and the Applicant. He stated that he immediately admitted to prison authorities what he did to the other prisoner and said it was a mistake.

82.    Another matter that arose from his time in prison occurred in July 2017 when he informed a prison officer who he did not like because she said she could have him transferred to another prison, that he had been a “patched” member of a motorcycle club but no longer was. He further stated to the prison officer that he still associated with people who were patched members of a motorcycle club. He declined to identify the motorcycle club that he was allegedly a member of. In the witness box he stated that this statement to the prison officer was false. When asked why he made the statement, he said he wanted to get back at her and he described her as a “smartarse”. This deliberate attempt to mislead and deceive the prison officer did not reflect well on the Applicant. This incident is another example of the way he tends to treat obedience to the law and react to authority. His credibility certainly is affected by this fact.

Legislative Provisions

21    Section 501(3A) of the Act provides that 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);

. . .; and

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

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

23    Section 501CA of the Act relevantly provides that:

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

…

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

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

(b)    the Minister is satisfied:

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

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

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

25    Paragraph 6.3 of Direction 65 provides as follows:

6.3    Principles

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

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

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

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

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

. . .

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

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

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

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

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

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

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

(c)    expectations of the Australian community.

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

13.1    Protection of the Australian community

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

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

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

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

. . .

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

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

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

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

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

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

13.3 Expectations of the Australian Community

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

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

Applicant’s submission to the Tribunal

33    On 22 January 2019, the applicant filed a statement of facts, issues and contentions with the Tribunal. The statement addressed the considerations referred to in Direction 65. In respect of the extent of impediments if removed, the statement contained the following submissions (which was the extent of the applicant’s written submissions on that topic)(footnotes omitted):

78. The Applicant’s intellectual disability would cause a significant impediment should be removed from Australia.

79. Tim Watson-Munro opined that:

a. The Applicant’s IQ, as assessed in 2014, falls in the intellectually disabled category within the bottom 1% of the population for his age range.

b. The Applicant will struggle to survive if returned to his country of origin.

c. The Applicant reported high levels of anxiety should he be returned to Croatia in the context of his poor coping skills.

d. The Applicant has limited capacity to effectively negotiate his environment.

e. This aspect of his functioning will become more relevant should he be deported and consequently reliant upon his own means in order to survive.

80. The consequences for the Applicant, as an intellectually disabled man returned to a county where he has no supports will be devastating.

34    The submissions in paragraph 79 were supported by a psychologist’s report of Mr Watson-Munro.

35    The Minister’s responding statement of facts, issues and contentions, filed on 30 January 2019, advanced the following submissions on the extent of impediments if removed (footnotes omitted):

51. The applicant has resided in Australia for approximately 15 years. The Minister accepts that the applicant’s mother and partner reside in Australia, he does not have immediate family in Croatia, and he suffers from intellectual impairment which may present as an impediment in establishing himself in Croatia. The Minister acknowledges that these considerations weigh in favour of revocation.

52. However, the Tribunal should have regard to the fact that the applicant speaks Serbian – a language spoken in Croatia and understood by Croatians – and has employable skills as a painter. There is therefore no reason to believe the applicant would face any language or employment barriers to return.

36    On 6 February 2019, the applicant’s lawyer sent an email to the Tribunal. As noted above, the applicant alleged that the Tribunal failed to consider submissions advanced on behalf of the applicant in that email. The email attached a statement of Mr Goran Nikolic (a previous employer of the applicant) dated 6 February 2019 and seven articles containing what can be described as “country information”. The email referred to specific passages in those articles that were relied on by the applicant. The email also made the following three submissions:

1)     Serbian and Croatian may be mutually intelligible, but it is clear that a Serbian speaker can be readily distinguished and identified as such by a Croatian speaker.

2)     The Minister contends that the applicant speaks Serbian and can be understood by Croatian speakers, but does not address the applicant’s own ability to comprehend Croatian. His ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment.

3)     Language and ethnic identity remain highly politicised issues in Croatia, and the applicant’s identity as an ethnic Serb is likely to seriously disadvantage him.

With regard to the last point, numerous sources support the view that there is ongoing discrimination against ethnic Serbs in Croatia.

37    In relation to the issue of discrimination, the email highlighted passages from the attached articles that related particularly to discrimination against Serbs in respect of employment opportunities.

38    It is apparent that the foregoing submissions were not advanced by the applicant in his statement of facts, issues and contentions that was filed with the Tribunal. Thus, what was said in the email was the extent of the submissions advanced on those topics.

Tribunal’s reasons

39    Before the Tribunal, both parties agreed that the applicant did not pass the character test for the purposes of s 501(6) of the Act (by virtue of the applicant having a “substantial criminal record”). Therefore, the sole issue before the Tribunal was whether there was “another reason” to revoke the visa cancellation in accordance with s 501CA(4)(b)(ii), with reference to the primary and other considerations identified in Direction 65.

40    The Tribunal placed significant weight on the seriousness and frequency of the applicant’s offending and the risk that he would re-offend if released into the community, finding that those factors weighed heavily against revocation (AAT reasons [28]-[110]).

41    The Tribunal found that, on the evidence before it, the applicant’s offending should be regarded as serious within the terms of Direction 65. The Tribunal placed emphasis on the frequency of the applicant’s offending, the trend of increasing seriousness and that fact that the applicant had not “learned his lesson” after his 2009 conviction for violent offending (AAT reasons [77]). The Tribunal reviewed the psychological evidence about the applicant and concluded that the applicant suffered from some level of intellectual impairment and had a low IQ, but was likely in the borderline range in terms of an intellectual disability (AAT reasons [86]-[97]). The Tribunal found that the nature and seriousness of the applicant’s offending, which involved, amongst other things, violence, disregard of court orders and repeat offending, weighed heavily against revocation (AAT reasons [104]).

42    The Tribunal had little confidence that the applicant would not reoffend in light of his lengthy criminal history and was of the view that any relapse into criminal offending would involve violence. It observed that, even if it were to accept that the applicant posed a low risk of reoffending, the harm that would flow from that risk was too great. The Tribunal characterised the risk of future harm from the applicant as “unacceptable” (AAT reasons [109]-[110]).

43    As to the best interests of minor children in Australia, the Tribunal noted that the applicant had not identified any minor children and had made no submissions directed to this primary consideration (AAT reasons [112]).

44    As to the expectations of the Australian community, the Tribunal placed heavy weight on this consideration. The Tribunal found that the limits of the Australian community’s tolerance for criminal conduct of the kind engaged in by the applicant had been reached, such that a reasonable member of the Australian community would expect that a non-citizen with a criminal record of the kind held by the applicant poses an unacceptable risk of reoffending. In making that finding, the Tribunal observed that it could not be said that the applicant was not given a chance or did not have access to services that could have enabled him to avoid further (violent and serious) offending (AAT reasons [133]-[134]).

45    In relation to the matters identified in Direction 65 as “other considerations”, the Tribunal recorded the following observations and findings:

(a)    First, the Tribunal noted that the applicant had not made any submissions directed at the consideration of international non-refoulement obligations and found, having read the articles tendered by the applicant that concerned “various human rights issues in Croatia”, that this was not a matter that should be ascribed weight in the absence of any evidence indicating that the applicant faced harm in Croatia (AAT reasons [137]-[140]).

(b)    Second, the Tribunal accepted that it was in the best interests of the applicant’s mother and partner that the visa cancellation be revoked. The Tribunal concluded however that the consideration of the strength, nature and duration of ties to Australia warranted diminished weight having regard to other factors that included that the applicant commenced his offending relatively soon after arriving in Australia and that the applicant had not made a particularly positive contribution to the Australian community, as ascertained from the applicant’s limited employment history (AAT reasons [149]-[155]).

(c)    The Tribunal noted in relation to the impact of victims that there was no evidence before it concerning the impact of a decision not to revoke the visa cancellation on members of the Australian community, including the applicant’s victims (AAT reasons [157]). The Tribunal acknowledged the “extremely serious injuries suffered by the victim of the attack with the baseball bat” and the observations made by the sentencing judge on the question of impact but, in the absence of more evidence, was unable to place any weight on this consideration (AAT reasons [158]-[159]).

46    The Tribunal gave consideration to the extent of impediments if the applicant were returned to Croatia or Serbia (AAT reasons [160]-[177]). The Tribunal concluded that this consideration weighed in favour of revocation of the mandatory cancellation of the applicant’s visa (AAT reasons [178]). The Tribunal’s consideration of this factor is elaborated on below.

47    The Tribunal accepted that the “other considerations” relating to the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments to the applicant if he was returned to Croatia weighed in the applicant’s favour (AAT reasons [184]-[185]). However, it found that these countervailing considerations did not overcome the nature and seriousness of the applicant’s conduct, the risk to the Australian community should the applicant reoffend and the expectations of the Australian community (AAT reasons [186]).

48    Taking all of the foregoing matters into account, the Tribunal affirmed the delegate’s decision (AAT reasons [187]).

49    Having regard to the arguments presented by the parties set out below, it is helpful to set out in full the Tribunal’s consideration of the extent of impediments if the applicant were returned to Croatia:

160.    The Applicant contends that his intellectual disability would cause a significant impediment should he be removed from Australia.

161.    Much has already been canvassed concerning this question earlier in these reasons. That discussion is referred to and repeated.

162.    The primary thrust of the Applicant’s contentions concerning the extent of impediments is derived from the contents of the report of Mr Watson-Munro of 25 April 2018. The elements of that report relied upon can be summarised as follows:

   (a)    the Applicant’s IQ falls within the intellectually disabled category;

   (b)    he will struggle to survive if returned to his country of origin;

(c)    he has reported high levels of anxiety should he be returned to Croatia in the context of his poor coping skills;

   (d)    he has limited capacity to effectively negotiate his environment; and

(e)    this aspect of his functioning will become more relevant should he be deported and consequently rely upon his own means in order to survive.

163.    The Applicant contends that the consequences for him as an intellectually disabled man returned to a country where he has no supports would be devastating.

164.    The contentions on behalf of the Applicant also emphasised that by reason of living a significant portion of his life in Australia, the Applicant is far more Australian than he is Croatian. The Applicant now considers English to be his first language. He has never returned to Croatia and/or Serbia since his arrival in Australia. He has no remaining family or social connections upon which he could rely to re-establish himself there. The Applicant’s counsel in her final submissions even went so far as to submit that this consideration should be treated as or equal to a primary consideration.

165.    The Respondent submitted that there was sufficient evidence before the Tribunal to establish that the Applicant is entitled to or is in fact a citizen of Croatia. The contention is that as both of his parents were Croatian he is entitled to Croatian citizenship under Article 4 of the Law on Croatian Citizenship. A corollary of this contention is that Croatia is a member of the European Union. As a citizen of a European Union member state, he has a right to live in any other European Union nation. The Tribunal accepts this contention.

166.    The Respondent accepts that the Applicant has resided in Australia for approximately 15 years. It further accepts that the Applicant’s mother and partner reside in Australia and that he does not have any immediate family in Croatia. There is further acceptance on the part of the Respondent that the Applicant suffers from an intellectual impairment, however it may be categorised, which presents as an impairment in establishing himself in Croatia if he were to be returned. It is acknowledged by the Respondent therefore that these considerations weigh in favour of revocation.

167.    However, the Respondent contends that the weight the Tribunal should attach to this consideration should be limited, given the fact that the Applicant apparently speaks Serbian which is a language understood by many in Croatia, together with the fact that he has employable skills as a painter.

168.    Therefore, the contention of the Respondent is that, to the extent that this “other” consideration weighs in favour of revocation, any such weight is insufficient to outweigh the seriousness of the Applicants (sic) offending and the likelihood that he will commit further offences. Together with the cumulative nature of his offending, which has become progressively more serious over the years, the conclusion must be reached that the Applicant presents an unacceptable risk to the Australian community.

169.    In addressing this consideration, as required by paragraph 14.5(1) of the Direction, it is important to bear in mind the language of the paragraph itself. The decision-maker is required to identify the extent of any impediments the non-citizen may face in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country taking into account the matters identified thereafter in the paragraph.

170.    There is surprisingly little material before the Tribunal that expressly addresses these questions.

171.    The Tribunal notes that the Applicant is 29 years old. Apart from the matters identified in the expert reports of the clinical psychologists and the psychiatrist, the Applicant appears to be in quite good physical condition. He does speak a language that is understandable in either Croatia or Serbia.

172.    There is really little evidence before the Tribunal concerning social, medical and/or economic support available, or unavailable, to the Applicant in the event that he were to be returned. Croatia is a developed economy and a member of the European Union. This of itself must mean that the Applicant would be able to avail himself of social, medical and economic support of a reasonable standard.

173.    The Tribunal accepts that the Applicant would face significant challenges in re-establishing himself after such a long absence whether this be in Croatia, Serbia or another member nation of the European Union as he would be entitled to do.

174.    The Tribunal is mindful of, and accepts that, there would be some difficulty faced by the Applicant in the early stages of his return to Croatia, in familiarising himself with the available social, medical and/or economic supports that could assist him. There may be some cultural barriers due to his Serbian background. However, those barriers are not clear to the Tribunal.

175.    Of concern to the Tribunal is the issue identified in the reports of the Forensic Psychiatrist and psychologists arising from the Applicant’s low IQ and borderline intellectual disability. Regrettably, there is no evidence available to the Tribunal which describes the range of available services for a citizen of Croatia who suffers from this affliction. It needs treatment, and if it is not addressed the Applicant will be in a position of some disadvantage.

176.    On the point concerning the Applicant re-establishing himself in another member nation of the European Union, there was some debate before the Tribunal about whether the Applicant could gain entry to the United Kingdom. The reason being of course that English is the spoken language in that country. The Tribunal observes that English is widely spoken throughout the European Union, particularly in major cities. Some materials were produced to the Tribunal by the Respondent after the conclusion of the hearing concerning the requirements of a citizen of another European Union nation should they seek to reside in the United Kingdom. The Applicant would be required to produce a police certificate and under the relevant rules would probably be refused entry because he has been convicted of an offence for which he was sentenced to a period of imprisonment of at least four years. He can also be excluded if it is in the interests of public policy or public security. It is not known whether other European Union nations have similar restrictions. However, for the purposes of this consideration the Tribunal will infer they do. Therefore, more likely than not the Applicant’s capacity to relocate to other European Union nations is limited.

177.    The Tribunal has also taken into account under this consideration the content of the articles tendered by the Applicant (which were addressed earlier in these reasons under the consideration of Australia’s International non-refoulement obligations contained in paragraph 14.1 of the Direction). It is possible that the Applicant could face some level of harassment or discrimination by reason of his Serbian ethnicity were he to return to Croatia. The Tribunal reiterates that this is contrary to the provisions of the Croatian Constitution and the applicable laws of the European Union. A citizen of the European Union does have rights, such as under the European Convention on Human Rights, which can be enforced in an appropriate court of competent jurisdiction, including the Croatian courts, and if for instance such behaviour were state-sanctioned or tolerated, in the European Court of Human Rights. These remedies could be exercised by the Applicant.

178.    The Tribunal concludes that this consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.

The applicant’s submissions

50    The applicant contended that the submissions to the Tribunal made by email on 6 February 2019 were clearly articulated arguments relying on established fact and submissions of substance. He contended that the Tribunal failed to consider the submissions which constituted a failure to accord natural justice and a constructive failure to exercise jurisdiction, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] and [32] per Gummow and Callinan JJ, at [88] per Kirby J and at [95] per Hayne J, and Griffiths J’s summary of the applicable principles in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [81].

51    The applicant argued that the Tribunal’s failure to consider the submissions can be inferred from the following aspects of the Tribunal’s decision:

(a)    At [17], the Tribunal listed the documentary evidence before the Tribunal and expressly listed the statement of Mr Nikolic dated 6 February 2019 (at [17(d)]) and a “bundle of seven articles concerning various issues in Croatia” (at [17(e)]). However, the Tribunal did not mention the submissions in the email which forwarded those documents to the Tribunal.

(b)    At [138], the Tribunal referenced “Exhibit A5” in a footnote, which the applicant argues is a further reference to the bundle of seven articles attached to the email of 6 February 2019 (which is consistent with it being mentioned as the fifth item of the applicant’s list of documentary evidence at [17] of the Tribunal’s reasons). The Tribunal described the bundle as “concerning various human rights issues in Croatia” and then stated “The Tribunal was not referred to any specific sections of those articles”. The applicant argued that that statement is plainly wrong because the email submissions specifically explained the purpose of the material and directed attention to the relevant passages that supported the arguments that the applicant would suffer serious disadvantage in Croatia as a Serb.

(c)    At [160]-[178], the Tribunal considered the extent of the impediments that the applicant would suffer if his visa remained cancelled and he were returned (either to Serbia or Croatia). At [170], the Tribunal stated “There is surprisingly little material before the Tribunal that expressly addresses these questions”. At [172], the Tribunal stated “There is really little evidence before the Tribunal concerning social, medical and/or economic supports available, or unavailable, to the Applicant in the event that he were to be returned”. At [174], the Tribunal stated “There may be some cultural barriers due to his Serbian background. However, those barriers are not clear to the Tribunal”.

52    The applicant argues that it can be inferred from the above statements that the Tribunal was aware of the articles provided to it, and read those articles, but that it overlooked the submissions in the email by which those articles were forwarded to it, relying on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. The consequence, on the applicant’s argument, is that the Tribunal did not consider the submissions and did not read the articles in light of the submissions.

53    The applicant acknowledges that, at [138], the Tribunal made the following findings, based on the articles provided to it:

Of relevance is reference to harassment and discrimination of the small Serbian community remaining in Croatia. This is acknowledged. It is possible that the Applicant, should he return to Croatia, would face some possible discrimination and harassment. However, this is contrary to the Croatian Constitution. It is also contrary to the applicable laws of the European Union as introduced into Croatian domestic law. The Croatian Constitution does provide for specific respect for civil liberties. This material does not demonstrate that the Applicant is under threat of a specific type of harm within the meaning of this consideration.

54    However, the applicant contended that those findings were made in connection with the Tribunal’s consideration of Australia’s non-refoulement obligations and not in relation to the applicant’s submission concerning the extent of impediments to return. At [139] and [140], the Tribunal concluded:

There is no evidence before the Tribunal that establishes therefore, that the Applicant would be at risk of a specific type of harm that would trigger any international non-refoulement obligation of a type identified or contemplated by this paragraph of the Direction.

Accordingly, no weight can be attached to this consideration.

55    The applicant also acknowledges that, at [167], the Tribunal noted that “the Applicant apparently speaks Serbian which is a language understood by many in Croatia” and, at [171], the Tribunal noted that the applicant “does speak a language that is understandable in either Croatia or Serbia”. However, the applicant contended that the Tribunal failed to consider the applicant’s submission to the effect that, although the applicant might be understood in Croatia, it is likely that his ability to comprehend Croatian is limited, thereby limiting his ability to understand others. The applicant argues that, while the Tribunal addressed one aspect of the applicant’s language difficulties (the ability to be understood), it failed to address the corresponding aspect (the ability to understand).

The Minister’s submissions

56    The Minister contended that the relevant question for the Court is whether the Tribunal’s written reasons disclose that the Tribunal has, as a matter of substance, had regard to the representations put by or on behalf of the applicant, relying on Minister for Immigration and Border Protection v Maioha (2018) 162 ALD 471 at [42]-[45]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32]-[35]; and BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 at [59]-[61].

57    In relation to [138] of the Tribunal’s reasons, where the Tribunal stated that it was not referred to any specific sections of the seven articles (which accompanied the email of 6 February 2019), the Minister submitted that that statement is correct if understood in the context of the issue there being considered by the Tribunal, Australia’s non-refoulement obligations. Even if the statement is understood in an absolute sense, the Minister submitted that it does not necessarily follow that the Tribunal’s decision is affected by jurisdictional error. The question remains whether the Tribunal addressed the applicant’s submissions as a matter of substance.

58    The Minister submitted that the reasons of the Tribunal show that, as a matter of substance, it gave careful consideration to the representations that the applicant would experience hardship upon returning to either Croatia or Serbia. The Minister relies on the following aspects of the Tribunal’s reasons:

(a)    At [138], the Tribunal stated that it had read the seven articles and acknowledged that they provided evidence of harassment and discrimination of the small Serbian community remaining in Croatia. The Tribunal found that it is possible that the applicant, should he return to Croatia, would face some possible discrimination and harassment.

(b)    At [162(a)] and [163], the Tribunal acknowledged the applicant’s submission that his IQ fell within the intellectually disabled category and that the consequences for him as an intellectually disabled man, returning to a country where he had no supports, would be devastating.

(c)     At [162(b)], the Tribunal acknowledged the applicant’s submission that he would struggle to survive if returned to his country of origin.

(d)    At [164], the Tribunal acknowledged the applicant’s submission that he now considered English to be his first language.

(e)    At [172]-[173], the Tribunal found that, due to Croatia’s status as a developed economy and member of the European Union, the applicant would be able to avail himself of social, medical and/or economic supports of a reasonable standard but that the Tribunal accepted that the applicant would face significant challenges in re-establishing himself after such a long absence, whether this be in Croatia, Serbia or another member nation of the European Union.

(f)    At [174], the Tribunal accepted that there would be some difficulty faced by the applicant in the early stages of his return to Croatia, in familiarising himself with the available social, medical and/or economic supports that could assist him and there might also be some cultural barriers due to the applicant’s Serbian background.

(g)    At [175], the Tribunal acknowledged that whilst there was no evidence available to it which described the range of available services for a citizen of Croatia who possessed a low IQ and borderline intellectual disability, the applicant would be in a position of some disadvantage if he could not access the relevant treatment.

(h)    At [177], the Tribunal again stated that it took into account the content of the articles submitted by the applicant and accepted as possible that the applicant could face some level of harassment or discrimination by reason of his Serbian ethnicity if he were to return to Croatia. The Tribunal noted however that such treatment would be contrary to the provisions of the Croatian Constitution and the applicable laws of the European Union and that remedies available to citizens of the European Union could be exercised by the applicant.

(i)    At [178], the Tribunal concluded that this consideration (the extent of impediments to the applicant if removed from Australia) weighed in favour of revocation of the mandatory cancellation of the applicant’s visa.

59    The Minister submitted that the Tribunal was not required to provide a line by line refutation of any of the evidence (largely in the form of country information) identified by the applicant as supporting the contentions advanced by him. The intermediate and ultimate findings recorded by the Tribunal were capable of being understood as comprehending all matters that had been identified by the applicant as supporting a conclusion that he would experience hardship associated with a return to Croatia (or Serbia), and it was not necessary for the Tribunal to record separate findings concerning discrete matters such as the applicant’s ability to comprehend Croatian or the applicant’s prospects of obtaining employment in Croatia.

60    The Minister further submitted that any failure by the Tribunal to consider discrete matters raised by the applicant was not material to the Tribunal’s decision as any omission could not have materially affected the adverse decision that was made, relying on Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[30] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [45] per Bell, Gageler and Keane JJ. That is because the Tribunal determined that the extent of impediments to the applicant weighed in favour of revocation, and did so upon a correct appreciation of the submissions advanced by the applicant and having considered the country information identified by the applicant as being probative of the issue.

Consideration and determination

61    There was no dispute between the parties as to the applicable legal principles, which are set out above. The dispute concerns the application of those principles to the facts of this case.

62    The Court has frequently cautioned against an approach that scrutinises the reasons of an administrative decision-maker in an effort to identify a submission not referred to in the reasons. Recently, in Singh v Minister for Home Affairs (2019) 267 FCR 200, the Full Court reiterated (at [37]):

In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

63    Having considered the submissions made to the Tribunal and the material before it, I am not persuaded that the Tribunal failed, as a matter of substance, to have regard to the representations put on the applicant’s behalf and thereby failed to exercise jurisdiction. The reasons for my conclusion are as follows.

64    First, it is important to keep in mind the context in which the submissions in the email of 6 February 2019 were made. In the statement of facts, issues and contentions filed by each of the applicant and the Minister, the extent of impediments to removal formed a minor aspect of the submissions. The applicant’s submissions on that topic are reproduced above (and comprised 3 short paragraphs). A large part of the submissions addressed the two primary considerations in Direction 65 that were relevant, being the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community. As found by the Tribunal and set out above, the applicant’s criminal offending was extensive and serious.

65    Second, the submissions made in the email of 6 February 2019 were short and relatively undeveloped. The submission relating to the applicant’s ability to speak and comprehend the Serbian and Croatian languages was responsive to the Minister’s submission that the applicant speaks Serbian, which is a language spoken in Croatia and understood by Croatians. The applicant’s response did not contest the Minister’s submission, but asserted that his ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment. There was no evidence to support the assertion. The submission concerning possible discrimination in employment opportunities in Croatia on account of Serbian ethnicity was supported by the articles attached to the email.

66    Third, while the Tribunal did not expressly refer to the submissions in the email of 6 February 2019, I am not prepared to infer that the Tribunal overlooked the email and failed to have regard to it. The Tribunal expressly took into account the articles attached to the email, indicating that the Tribunal received the email. At [17(e)], the Tribunal referred to the articles and at [138] the Tribunal stated that it had read the articles. It is clear from those statements that the Tribunal received the email and understood that the articles were provided in support of submissions being made by the applicant. At [138], the Tribunal observed that the relevant aspect of the articles is the references to harassment and discrimination of the small Serbian community remaining in Croatia and that the submission being advanced by the applicant was that, should he return to Croatia, he may face some possible discrimination and harassment. At [177], the Tribunal found that it is possible that the applicant could face some level of harassment or discrimination by reason of his Serbian ethnicity were he to return to Croatia. In my view, those observations and findings support the conclusion that the Tribunal had regard to the short submissions advanced in the email of 6 February 2019, even though the Tribunal did not expressly refer to the submissions.

67    The applicant placed reliance on the Tribunal’s statement at [138] that the Tribunal was not referred to any specific sections of the articles; the applicant submitted that this indicated that the Tribunal overlooked the specific references set out in the email. Read in context, I consider that the Tribunal’s statement at [138] was intended to convey that the Tribunal was not referred to specific sections of the articles in relation to the issue of international non-refoulement obligations (which the Tribunal was addressing at [138]), which was a correct statement. The applicant also placed reliance on the Tribunal’s statement at [170], when considering the extent of impediments if returned, that “There is surprisingly little material before the Tribunal that expressly addresses these questions”. I do not believe that that statement supports a conclusion that the Tribunal overlooked the email. Given that the Tribunal was aware of the articles attached to the email and referred to them at [177], it can be inferred that the Tribunal’s statement was not referring to the articles. Rather, the statement can be understood as a reference to the totality of the applicant’s submissions on the topic of the extent of impediments if returned. In my view, the statement was correct.

68    Fourth, even if the Tribunal overlooked the applicant’s submissions in the email, I am not persuaded that the Tribunal failed, as a matter of substance, to have regard to the representations put on the applicant’s behalf. In relation to the applicant’s submission that his identity as an ethnic Serb is likely to seriously disadvantage him in employment opportunities because of discrimination against ethnic Serbs in Croatia, the Tribunal considered the evidence submitted by the applicant and made findings based on that evidence. At [127], [138], [174] and [177], the Tribunal found that the applicant will face challenges if he is returned to Croatia which cannot be underestimated, but the Tribunal did not consider them to be insurmountable or of a kind that would place him in a position where he will struggle to survive (as the applicant contended). In relation to the applicant’s submission that his ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment, the Tribunal found (at [171]) that the applicant speaks a language that is understandable in both Croatia and Serbia. That finding is not challenged. While the Tribunal did not expressly address the applicant’s submission that it is likely that he would find it difficult to comprehend Croation, the submission was not supported by evidence and I infer that the Tribunal’s finding at [171] is implicitly a rejection of the submission.

69    Fifth and finally, to the extent that the Tribunal erred in failing to address the applicant’s submissions in the email of 6 February 2019, I accept the Minister’s submission that the error could not have affected the outcome of the Tribunal’s decision and, accordingly, was not jurisdictional. The onus is on the applicant to satisfy the Court of jurisdictional error including that the error was material in the relevant sense: SZMTA at [4], [41] and [46] per Bell, Gageler and Keane JJ. Speculation as to how taking into account the applicant’s submission “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether the failure to consider the submission has operated to deprive the applicant of the possibility of a successful outcome; that is, whether the Tribunal’s decision could realistically have been different: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.

70    The issue of the extent of impediments if removed was treated as a subsidiary issue by the parties in their submissions to the Tribunal, including the email of 6 February 2019. That is not surprising. In this matter, the primary considerations in Direction 65 of protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community dominated because of the extensive and serious criminal conduct of the applicant. The Tribunal’s findings with respect to the applicant’s criminal history have been reproduced in full earlier in these reasons in order to convey the gravity of those matters. On both issues, the Tribunal found that the factors weighed heavily against revocation (at [110] and [134]). Accepting that the issue of the extent of impediments if returned is a relevant consideration under Direction 65, the Tribunal considered that issue, made findings based on the evidence before it, and concluded that it weighed in favour of revoking the cancellation of the visa. In doing so, the Tribunal addressed the issue of discrimination against ethnic Serbs in Croatia in any event, and also made findings about the applicant’s language ability. Having regard to the totality of the Tribunal’s reasons, I consider that there is no realistic prospect that the Tribunal’s decision could have been different if the Tribunal had taken into account what the applicant submitted in its email of 6 February 2019.

Conclusion

71    In conclusion, I do not consider that the Tribunal’s decision is affected by jurisdictional error. I dismiss the application and order that the applicant pay the Minister’s costs, as agreed or taxed.

Associate:

Dated:    7 February 2020