FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Home Affairs [2020] FCA 127

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue directed to the second respondent, quashing its decision made on 8 March 2019.

3.    A writ of mandamus issue directed to the second respondent, requiring a Tribunal constituted differently to the Tribunal that made the decision of 8 March 2019 to determine the applicant's application for review according to law.

4.    The applicant has liberty to apply in relation to costs within 14 days of the date of these orders.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The applicant is a Vietnamese citizen who arrived in Australia at the age of 14 in 2009 on a Class BB Subclass 155 - Five Year Resident Return visa.

2    The applicant's visa was mandatorily cancelled on 26 April 2018 under s 501(3A) of the Migration Act 1958 (Cth).

3    Section 501(3A) provides:

The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); 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.

4    A person does not pass the character test in a way contemplated by s 501(3A) if the person has a 'substantial criminal record' as defined by s 501(7): s 501(6)(a). Under s 501(7)(c), a person has a 'substantial criminal record' if the person had been sentenced to a term of imprisonment of 12 months or more.

5    On 8 March 2018 the applicant was convicted in the District Court of Western Australia on drug charges and was sentenced to a term of imprisonment of 3 years and 6 months, backdated to commence on 14 June 2016. The applicant was granted parole on 28 May 2018 and taken into immigration detention.

6    Having regard to the sentence imposed on the applicant, it follows that s 501(3A)(a)(i) applied. Having regard to the date upon which the visa was cancelled, it also follows that s 501(3A)(b) applied.

7    However, s 501CA then requires the Minister to give written notice inviting the person whose visa was cancelled to make representations about revoking the cancellation. The applicant received such an invitation, and on 18 May 2018 requested revocation under s 501CA(4) of the Migration Act, providing submissions from his migration agent and other supporting documents. The date of the revocation request was therefore prior to the date that the applicant was granted parole and so the original representations to the Department did not address that issue.

8    In December 2018 a delegate of the Minister made a decision not to revoke the decision to cancel the applicant's visa.

9    The applicant applied for review of the decision in the Administrative Appeals Tribunal (Tribunal). Section 500(1)(ba) makes provision for such an application. The Migration Act provides by s 499 that the Minister may give written directions about the exercise of the statutory power under s 501(3A) to revoke the cancellation of a visa. The Minister gave a written direction in the form of Direction 79 made 20 December 2018 (Direction).

10    The applicant had legal representation before the Tribunal. His lawyer provided a written statement of facts, issues and contentions (SOFIC). The applicant gave oral evidence and was cross-examined. Other relatives and a psychologist also gave evidence and were cross-examined. The Tribunal clearly had regard to the Direction in considering the application.

11    The Tribunal affirmed the delegate's decision. The applicant now seeks review of that decision in this Court. This Court's jurisdiction arises under s 476A of the Migration Act, as it comprises an application to review in respect of a privative clause decision of the Tribunal to which s 500 applied. Therefore, the applicant must demonstrate jurisdictional error in the Tribunal's decision.

12    The applicant claims by his originating application that there was jurisdictional error in that the Tribunal failed to complete its statutory task because it failed to consider the applicant's submission that the Prisoners Review Board of Western Australia (Board) had granted the applicant parole under the Sentence Administration Act 2003 (WA) by a decision with reasons made on 28 May 2018 (Parole Decision).

13    The Minister denies that the Tribunal committed the error as alleged. The Minister's case proceeds on the basis that the Tribunal did consider that the applicant was released on parole and that it considered the Parole Decision. The Minister submits further that even if the alleged error is found to have occurred then it was not material as any regard paid to the Parole Decision could not realistically have resulted in the Tribunal making a different decision. Accordingly, the Minister argues, such failure did not comprise jurisdictional error having regard to the High Court's decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

Background to conviction and parole

14    The applicant was arrested on 14 June 2016 on four drug charges and was held in custody. He pleaded guilty to a charge of possession of 188.3 grams of MDMA and possession of $75,000 suspected of being unlawfully obtained. He pleaded not guilty to the other charges which were listed for trial, but on the day before the trial was due to commence the State filed a notice of discontinuance of those charges.

15    The applicant was sentenced for the two charges to which he pleaded guilty on 8 March 2018 (and at his request he was also sentenced on that date on a third charge of possessing heroin).

16    The applicant was sentenced by the District Court to a term of imprisonment of 3 years and 9 months, backdated to the date on which he had been taken into custody, being 14 June 2016, and with a direction that he be considered for parole at the half way point of his sentence (13 June 2018).

17    The applicant was released on parole on 13 June 2018 and taken into immigration detention.

Parole materials before the Tribunal

18    The Tribunal listed in its reasons the documents that were before it. Those documents included a supplementary bundle comprising a Parole Review Report dated 27 April 2018 (upon which nothing appears to turn), a Parole Assessment which is undated but refers to an interview date of 3 April 2018 and presumably was produced in late April 2018 (Parole Assessment), a Board Decision Slip with a stated date of 28 May 2018 (Decision Slip) and the Parole Decision. Presumably the documents were provided by way of a supplementary bundle because they were received by the Minister's solicitor's office only sometime after January 2019 and apparently did not form part of the materials before the delegate.

Parole Assessment

19    The Parole Assessment is on Department of Justice, Corrective Services letterhead. It appears that it has been provided only in part in the application book, and as the signatory page is not included the position of the author is unknown. However, it is reasonable to assume that the Parole Assessment was prepared by an authorised officer from the Department. It was prepared following an interview of 3 April 2018. It refers to an alert dated 26 April 2018 which recorded that the applicant had received a formal notification of cancellation of his visa pursuant to s 501 of the Migration Act. Therefore, the risk of deportation was known at the time of its preparation.

20    The Parole Assessment relevantly reads:

Risk assessment

In considering Mr Nguyen's risk of reoffending, the factors include substance use, negative peer association, financial gain, the belief that he would not be caught, poor decision making and lack of consequential thinking. Mr Nguyen identified that his protective factors include stable accommodation with his partner, the support of his family and good prospects of employment. Mr Nguyen admitted that he had been easily influenced by his co-offender and stated that he feels "disappointed" that he had listened to him and committed the offences. He stated that he has no current contact with his co-offender, who has yet to be sentenced and who resides in a different unit at Casuarina Prison. Mr Nguyen reported that he remains focused on maintaining abstinence from illicit substance use and is motivated by the desire to engage in employment and start a family.

Likelihood of complying with the order obligations and requirements

Mr Nguyen has demonstrated satisfactory compliance with Prison rules during his current term of imprisonment, which indicates that he would likely comply with a Parole Order. However, he may be subject to immediate deportation upon release, which will impact his ability to successfully comply with a Parole Order.

Recommendation

Mr Nguyen is serving a term of imprisonment for substance related offences. He has not been required to engage in treatment programs, however he has completed voluntary courses and appropriate treatment interventions are available within the community. Mr Nguyen has some protective factors, including stable accommodation and good prospects for employment. Early release to Parole is supported. It is noted that Mr Nguyen is of interest to Immigration and should the Board choose to grant early release to Parole, he will likely be deported to Vietnam immediately upon release.

…

Special Conditions:

•    To engage in programs as directed,

•    To submit to urinalysis testing as directed,

•    Not to change address without prior approval of Community Corrections Officer,

•    To engage in education, training or employment and

•    To submit to detention by Immigration authorities for the purposes of deportation from Australia.

The Parole Decision

21    The Parole Decision was made by the Board on 28 May 2018. The reasons given were in the following terms:

In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to;

1.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.

2.    Participation in voluntary courses demonstrates a motivation and willingness to address offending behaviour.

3.    The parole plan includes confirmed suitable accommodation and support from family.

4.    The conditions of parole will further reduce the risk to the safety of the community.

5.    No prior criminal history.

22    In the section entitled 'Additional requirements of this order (Section 30)', the Board included the following requirements:

1.    Attend random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.

2.    Not to change address without the prior permission of the Community Corrections Officer.

3.    To immediately advise the Prisoners Review Board in writing, details of your intended date of return (or release) and an Australian address, if you were required to leave Australia under the Migration Act and you subsequently return to Australia before your sentence expiry date (or you challenge your removal and are successful in the revocation of the cancellation of your visa).

4.    To attend programmes and counselling as directed.

23    This outcome was summarised in the Decision Slip.

The SOFIC

24    The applicant's counsel raised in the SOFIC the first primary consideration under the Direction (see further below) of risk to the Australian community, and addressed the relevance of the likelihood of the applicant engaging in further criminal or other serious conduct. The applicant submitted that the risk of re-offending is very low for a number of reasons, and listed factors that include an express reference to the Parole Decision.

25    It is appropriate to note the express references in the SOFIC to parole.

26    The parole process was first referred to under the heading 'Background' as follows:

15.    On 28 May 2018, the Prisoners Review Board ordered that the applicant be released on parole on 13 June 2018. The applicant was released on that date and taken into immigration detention. He has been and is currently detained at Yongah Hill Immigration Detention Centre.

27    Next it was referred to with respect to the primary considerations under the Direction of protection of the Australian Community, under the heading 'Risk to the Australian Community'. At para 50 of the SOFIC the applicant submitted that the risk of the applicant re-offending is very low and provided various reasons. Relevantly, the applicant then submitted:

53.    The applicant's conduct while in custody has been exemplary. This is demonstrated through the prison reports released to the Registrar of the Tribunal on 18 January 2019 which show that the applicant:

a.    on 5 January 2018 was commended for his honesty in reporting an overpayment to his phone account that should have been given to another prisoner of the same family name;

b.    on 19 July 2017 was reported as 'doing very good job' as a peer support prisoner with 'No hesitation to help any prisoners, happy to assist officers in dealing with Vietnamese prisoners at any time. Always helps to orientate the prisoners with language barrier as an interpreter.'

c.    on 4 May 2017 successfully completed the Hakea Cognitive Brief Intervention Program;

d.    on 6 April 2017 completed the 2 day Lifeskills program;

e.    on 6 January 2017 was commended for 'prisoner work ethic is of high standard. Very polite to all staff members';

f.    on 10 November 2017 was commended for his interpreting service for 'PSO (Prison Support Officer) English to gain the information.';

g.    on 10 November 2017, as a peer support team member, informed the Prison Support Officer that a prisoner he had just had contact with was suicidal following which the prisoner was relocated to an observation cell;

h.    in a Management and Placement Plan approved on 23 April 2018 was recommended as 'suited to a minimum placement due to excellent prison conduct and non violent nature of offending and short time until a parole decision.';

i.    in a Parole Review Report created on 23 April 2018 was reported upon by unit staff in these words at para. 7.5: 'Mr Nguyen's behaviour and attitude is good and he is not considered a management problem. He maintains a clean cell and good level of personal hygiene. Mr Nguyen has no recorded negative incidents during his current period of imprisonment. He appears to mix well and help other prisoners were possible in his role as a Peer Support prisoner. He is respectful and polite to staff members.';

j.    was approved for parole on 28 May 2018 by the Prisoners Review Board [the Parole Decision] for reasons that included: 'No prior criminal history. Participation in voluntary courses demonstrates a motivation and willingness to address offending behaviour.'

54.    In approving the applicant for parole, the Prisoners Review Board in its Parole Order of 28 May 2018 stated that it gave paramount consideration to the safety of the community and decided that the applicant's release 'would not present an unacceptable risk to the safety of the community due to factors including 'the salutary impact of your first term of imprisonment and your first opportunity for parole supervision.'

28    Clearly the applicant referred in the SOFIC to parts of both the Parole Assessment (at para 53(i) and (j)) and the Parole Decision (at para 53(j) and para 54).

The Tribunal's reasons

29    In summary, the applicant contends that the Tribunal failed to consider the decision of the Parole Board and its reasons.

30    It is therefore necessary to summarise and set out parts of the Tribunal's reasons, especially those parts that address risk to the Australian community.

31    The Tribunal commenced by noting that in addition to hearing oral evidence from the applicant, his family, and his psychologist, it admitted certain documents into evidence at the hearing. It set out a list that included the bundle of 'supplementary relevant documents' being the bundle which included the parole documents.

32    The Tribunal accurately outlined the legislative framework it was required to consider, including s 501(3A) and s 501CA of the Migration Act and the Direction.

33    The Tribunal found that the applicant does not pass the character test on the basis of his substantial criminal record. That finding is not challenged.

34    The Tribunal then considered whether it was satisfied that there was another reason why the reviewable decision should be revoked. It commenced by referring to the Direction. Relevantly, para 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of a non-citizen's visa, there are three primary considerations, being:

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

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

(3)    expectations of the Australian community.

35    As to the first primary consideration, the Tribunal noted para 13.1(2) of the Direction provides that decision-makers should also give consideration to 'the nature and seriousness of the non-citizen's conduct to date' (para 13.1(2)(a)) and 'the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct' (para 13.1(2)(b)).

36    In considering the seriousness of the offences, it outlined the charges to which the applicant pleaded guilty and had regard to the sentencing remarks of the sentencing judge. It said that the applicant was involved in serious criminal offences and has been declared a drug trafficker. The Tribunal said that the sentence imposed was a significant sentence which was not suspended, that the offending took place over a period of six months, and that factors such as the applicant's lack of a prior history or age did not mitigate the seriousness of his conduct.

37    The Tribunal concluded that the nature and seriousness of the applicant's offending weighs against the revocation of the cancellation of his visa.

38    The Tribunal then considered the risk to the Australian community should the applicant commit further offences, having regard to both the nature of harm to individuals or the Australian community if there is further offending or serious conduct and to the likelihood of the applicant engaging in further criminal or other serious conduct (para 13.1.2(1) of the Direction). That paragraph is as follows:

(1)    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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

39    As to the first aspect, the Tribunal referred to the serious nature and consequences for the community of drug offences, noting that MDMA 'sits in the top echelon of harmful drugs along with methylamphetamine, cocaine and heroin' (citing Franklin v The State of Western Australia [2017] WASCA 102 (Mazza JA and Hall J)). It rejected an argument by the applicant's counsel that he was simply 'a cog, albeit an important cog' in the drug trafficking machine, noting that the sentencing judge had described him as 'an important cog without whose involvement and willingness to play a role the drugs could not have been disseminated in the community'. The Tribunal concluded that the nature of harm to individuals or the Australian community if the applicant were to reoffend is serious.

40    The Tribunal addressed the likelihood of the applicant reoffending as follows.

41    It noted the submissions by counsel for the applicant that the likelihood of the applicant offending was very low. It noted that whilst the sentencing judge took into account the applicant's submission that he intended to desist from engaging in drug dissemination, his Honour had left open the possibility of future criminal behaviour. It referred to the applicant's submission through his counsel that the applicant's conduct in prison had been exemplary and cited a reference to para 53 of the SOFIC. However, the Tribunal recorded that it had concerns about the applicant's attempts to explain or excuse his behaviour and therefore his level of remorse for his actions.

42    The Tribunal then referred to and took into account the evidence given by the applicant during the hearing. It did not consider the evidence was consistent with prior expressions of remorse. The Tribunal noted that the applicant said in his evidence that he was gullible, helped family members out of respect for them, and said he didn't realise that the drugs were very harmful.

43    The Tribunal also considered statements by a clinical psychologist, Mr Cicchini. Mr Cicchini referred to residual childhood trauma that required professional intervention; that abstinence may not be a sufficient precondition for rehabilitation as emotional vulnerabilities may induce relapses; that individuals who have had exposure to life events and have used substances may require further intervention to prevent relapse; that the applicant would benefit from professional counselling; that the applicant has good prospects of pursuing studies and employment; and that the risk of reoffending in a similar way is low.

44    The Tribunal referred to Mr Cicchini's oral evidence, which was to the effect that although the risk of reoffending is low, without appropriate intervention there is a high likelihood of relapse into drug use. Mr Cicchini did not agree with the applicant's own assessment that abstinence (which has resulted from his incarceration) had resolved his drug issues. The conclusion the Tribunal reached based on Mr Cicchini's evidence was as follows:

97.    The conclusion the Tribunal draws from Mr Cicchini's report and oral evidence is that whilst he assessed him as having a low risk of reoffending, to maximise his chances of not relapsing into drug use the Applicant would require some specialised counselling on an individual basis. He said that the drug use was a part of his offending. One of the risks identified by Adult Community Corrections, Parole Assessment for reoffending was substance use (Exhibit R3, p 205).

45    The Tribunal then considered the applicant's oral testimony that he would never use drugs again. It noted that the applicant had given no indication that he had any intention or desire to complete counselling and felt that he had dealt with his drug problem on his own. The Tribunal considered that having regard to the evidence of both the applicant and Mr Cicchini, there is a real risk of the applicant again having issues with drug use. The Tribunal said:

103.    The Tribunal acknowledges and takes note of the voluntary courses completed by the Applicant whilst he was in prison. The Tribunal has also taken into consideration the report and oral evidence of Mr Cicchini and the oral evidence of the Applicant. The Tribunal has concluded, that even though Mr Cicchini has assessed the Applicant as having a low risk of reoffending, due to the underlying concerns about the Applicant's prior drug use, and the risk of him using drugs again without the appropriate psychological intervention and the risk of him then reoffending, the Tribunal has assessed the risk of him reoffending as low to moderate.

46    The Tribunal then considered the Parole Assessment and set out the paragraphs under the heading 'Risk Assessment' and 'Recommendation' that are included above (at [20]).

47    The Tribunal continued:

106.    All family members indicated they were supportive of the Applicant and the Tribunal accepts he has a relatively high level of family support, particularly from his mother and wife. Despite this however, if he were to return to Vietnam, his wife would return with him and would be able to support him equally well there.

107.    In all the circumstances, the Tribunal is satisfied that there remains a low to moderate risk of the Applicant reoffending.

108.    Based on the above discussion, the Tribunal finds that there is a low to moderate likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. The Tribunal further finds that the Applicant poses an unacceptable risk of harm to individuals in the Australian community and that, in the circumstances, the Australian community would expect that his Visa should remain cancelled. This weighs against the revocation of the cancellation of the Applicant's Visa.

48    In summary, the Tribunal:

(1)    formed the view (which it stated three times) that it considers the risk of reoffending to be low to moderate;

(2)    formed that view taking into account the oral evidence of the applicant and Mr Cicchini;

(3)    formed that view despite the view of Mr Cicchini that there was a low risk of reoffending;

(4)    took into account the applicant's claim that he would abstain from drug use but was evidently concerned about the risk of reoffending as Mr Cicchini's oral evidence exposed a risk of drug use and further offending absent ongoing treatment;

(5)     noted the applicant did not give any indication of an intention to participate in such treatment; and

(6)    found support for its concerns about the risk of reoffending in the Parole Assessment Report which identified substance use as a risk factor.

49    The Tribunal then considered the second primary consideration under the Direction, being the best interests of minor children (the applicant's nieces). The Tribunal found that the best interests of his two nieces would marginally be served by revocation of the visa cancellation. The Tribunal gave some weight to this consideration.

50    The Tribunal then addressed the third primary consideration, being the expectations of the Australian community. It concluded that the applicant has committed drug trafficking offences which are considered serious and the Australian community would reasonably expect that he not hold a visa.

51    The Tribunal said that in weighing the considerations it took into account the serious nature of the offences committed and the unacceptable risk of harm to the community (a reference to the first primary consideration), and balanced them against other matters that weighed marginally in favour of the applicant (being considerations that included the strength of the applicant's ties to Australia and the extent of impediments he would face if removed). The Tribunal concluded that the primary obligation of protection of the Australian community outweighed those other considerations.

52    Accordingly, the Tribunal affirmed the delegate's decision to refuse to revoke the mandatory visa cancellation.

The applicant's contentions

53    It is to be recalled that the applicant submitted by way of the SOFIC that the risk of re-offending was very low.

54    The applicant submits that whilst the Tribunal took into account the Parole Assessment, it did not take into account the Parole Decision. He submits that, relying on the decision in Coker v Minister for Immigration and Border Protection [2017] FCA 929 (Moshinsky J), the Tribunal erred by failing to consider submissions and information that were 'worthy of serious consideration' and were 'critical and relevant' to the applicant's case (Coker at [57]).

55    The applicant says that the Parole Decision was drawn to the Tribunal's attention in the SOFIC but was not referred to by the Tribunal.

56    The applicant submits that the Parole Decision raises separate considerations to the Parole Assessment: the Parole Assessment authors assumed that the applicant would be deported immediately whilst the Board did not; and the Parole Decision contains some express statements that are not in the Parole Assessment, such as the reference to the 'salutary impact of the first term of imprisonment' and that the applicant's 'participation in voluntary courses demonstrates a motivation and willingness to address offending behaviour'. The applicant submits that the Parole Decision, being a decision of the Board, is significant and material in that the Board is constituted by persons experienced in making assessments of the risk of re-offending.

The Minister's contentions

57    The Minister contends that the Tribunal did have regard to the Parole Decision. The Minister notes that the Parole Decision was amongst the supplementary documents that were 'taken into evidence' by the Tribunal.

58    The Minister also relies on the reference in the Tribunal's reasons to para 53 of the SOFIC and notes that elsewhere in para 53 the Parole Decision is mentioned. The Minister submits that although the Tribunal's reasons do not explicitly refer to the Parole Decision, they refer to the paragraph of the SOFIC that also referred to the Parole Decision (para 53(j)), and that para 54 of the SOFIC, with its express reference to the parole order, falls immediately after para 53 so was likely seen.

59    The Minister also says that the Tribunal's conclusion that there remained a low to moderate risk of the applicant re-offending was open to it even if the Parole Decision is taken into account. Implicit in this submission is the contention that the Court should be reluctant to draw an inference that it was not taken into account.

60    Finally, the Minister submits that any failure by the Tribunal to have regard to the Parole Decision did not involve jurisdictional error as any such failure was not material, relying on SZMTA at [43]-[45] (Bell, Gageler and Keane JJ). The Minister submits that the Tribunal reached the conclusion in any event that the applicant's risk of reoffending was 'low to moderate'; that the Parole Decision did not say anything different to the Tribunal's decision; and that the Parole Decision does not suggest that the Board considered the applicant was not a risk to the community. The Minister notes that the Board included conditions on parole and says that in any event the task of the Board is different to that undertaken in considering the Direction, relying on Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [54] (White, Moshinsky and Colvin JJ).

61    The Minister submits that if the Tribunal did not have regard to the Parole Decision, then it is 'very unlikely' that the Tribunal would have changed its assessment of the risk of re-offending from low to medium or from low to moderate. Counsel for the Minister said:

Certainly, there is no possibility that it would not have found at least a low risk of re-offending.

…

But I'm saying that realistically there was not - there was no chance, realistically, of a different decision, had the Tribunal considered that - the fact of the [Prisoners Review Board's] parole order and its reasons, because that could not realistically have resulted in a different assessment of the risk of re-offending. Or at very best it could only ever [have] resulted in that risk of re-assessment perhaps being just low rather than low to medium - or low to moderate. And that if that was the case, then clearly the Tribunal ought not have changed its overall conclusion, weighing that primary consideration along with the expectations of the Australian community against those other considerations that weighed marginally in favour of revocation.

62    Before addressing those matters further, is it useful to summarise two cases referred to by the parties that deal in particular with parole decisions.

Coker and WAD531

63    In Coker, Moshinsky J considered a challenge to a decision by the Assistant Minister under s 501CA(4) to decline to exercise the discretion to revoke the cancellation of a visa under s 501(3). His Honour found that, in considering the risk to the Australian community, the Assistant Minister had focused on sentencing remarks made at the time of Mr Coker's conviction but had ignored a later report given by the Queensland Parole Board which was the subject of submissions made on behalf of Mr Coker. His Honour found that the Assistant Minister failed to consider the submissions and information provided about the grant of parole to the applicant, and held that this failure constituted a constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task: at [57]. In reaching that conclusion, Moshinsky J said:

[55]    Further, in my view, the submission concerning the Parole Board decision was 'worthy of serious consideration' and was 'seriously advanced' on behalf of the applicant (to pick up the language of Jenkinson J in Dennis Willcox). The submission formed a prominent part of Holding Redlich's letter dated 27 February 2015, as indicated by the passages set out at [23] above. The Parole Board is a government body exercising statutory functions under the Corrective Services Act and part of the criminal justice system of Queensland. Even without reference to Ministerial guidelines pertaining to the Parole Board (and there is no suggestion that these were before the Assistant Minister), it would be assumed that the safety of the community would be a priority, if not the highest priority, in deciding whether or not to grant a parole order. Thus, the decision of the Parole Board and the submissions based on it were worthy of serious consideration (even in the absence of reasons for the Parole Board's decision). Of course, the weight to be given to the submissions and information about the Parole Board's decision in the circumstances was a matter for the Assistant Minister.

64    In WAD531, the Court dismissed an appeal from a decision of the Federal Circuit Court which dismissed an application for review of a decision of the Tribunal to affirm the appellant's visa cancellation under s 501(2) of the Migration Act. The Tribunal had before it material that had been provided to the Parole Board in the appellant's application for parole and a parole decision. The Board made a parole order with conditions.

65    The Court said:

[54]    However, what did not form part of the materials was any reasons or findings by the Board when deciding to grant parole. The submission advanced by the appellant in oral submissions was to the effect that the Board decided to release him on parole taking into account the paramount consideration to the safety of the community, but that was a matter not taken into account by the Tribunal. The submission fails to give due acknowledgment to the conditions that were imposed by the Board in releasing him on parole. The conditions show that the Board did not form a view that he was not a risk to the community.

[55]    Reliance was placed by the appellant upon the decision in Coker v Minister for Immigration & Border Protection [2017] FCA 929 …

[56]    It is to be noted that where representations are made pursuant to s 501CA(4), the process is quite different to that which is followed where, as here, the Tribunal is dealing with an application to review an exercise of the discretion to cancel a visa under s 501(2) (noting that if the duty under s 501CA(4) is discharged by a delegate of the Minister then the decision is amenable to review in the Tribunal). Unlike the case of the initial decision by the Minister or delegate under s 501CA(4), the Tribunal conducts a hearing at which the appellant may give evidence and make oral submissions. The Tribunal provides reasons that reflect the nature of the issues that emerge from that process.

[57]    Importantly, having regard to the nature of the reasons that are required, the fact that reasons do not refer to a particular matter may be the consequence of the fact that the Tribunal considers the circumstances in which parole was obtained not to be material to its decision.

66    The Court found that, although it had the parole materials before it, the Tribunal had given reasons that disclosed why it did not rely upon the circumstances in which parole was granted, including that the Tribunal formed an adverse view concerning the information that the appellant had provided to the Parole Board (at [60]). It was not a case where material about parole was ignored but rather where it was disregarded for reasons given by the Tribunal (at [62]).

67    WAD531 involves quite different facts to those in this case. In WAD531, although the Tribunal considered the parole information, it did not place weight on the fact that parole had been granted. However, the Court's reference to the importance of conditions imposed on parole is useful, as are other observations that it made as to the different statutory tasks of the Parole Board as against the Tribunal, particularly:

[41]    First, the statutory task for the Prisoners Review Board and the Tribunal are not the same. They require decisions to be made in different statutory contexts in which different matters are required to be taken into account in order to advance different statutory purposes.

[42]    In the case of the decision on parole, there must be regard to the safety of the community as the paramount consideration: s 5B of the [Sentence] Administration Act 2003 (WA). In that context, the Act specifies release considerations which include in s 5A(a):

the degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or of any individual in the community;

[43]    There are other considerations which must also form part of the release considerations. However, it is to be noted that the way the question of risk is framed is that one consideration is the degree of risk. The policy manual of the Prisoners Review Board provides that a decision whether to release a person on parole should be prefaced by a statement that refers to whether release would present an acceptable or unacceptable risk to the safety of the community: see s 3.3.

[44]    The parole order granted to the appellant follows the statutory language and the language required by the policy manual and states:

In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act, 2003, giving paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to:

1.    The deterrent effect of his first custodial sentence;

2.    Participation and completion of the Medium Sexual Offender Treatment program and has been assessed as low risk of re-offending; and

3.    There is no risk to the victim given she now resides with a different family.

68    Against that backdrop it is appropriate to now turn to the principles and their application in this case.

Consideration

The review ground and general principles

69    The applicant did not seek to rely on any authorities other than Coker. He claimed that his circumstances and those considered in Coker were analogous. The applicant contends that the information in the Parole Decision was worthy of serious consideration and that failure to accord it such consideration comprised a constructive failure on the part of the Tribunal to carry out its statutory task, and so comprised jurisdictional error.

70    Both WAD531 and this matter involve decisions of the Tribunal. Coker involved a decision of the Assistant Minister. The different nature of the tasks of those respective decision-makers was addressed in WAD531 in the extract included above. Importantly, the Tribunal must comply with the Direction. Relevantly, the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case, and that primary considerations should generally be given greater weight than the other considerations. Further, para 7 and para 8 of the Direction provide guidance as to how a decision-maker is to exercise its discretion, and provide, relevantly, that decision-makers must take into account the primary and other considerations relevant to the individual case and that in applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

71    The applicant does not specifically allege in this case that the Tribunal failed to consider any particular criterion of the Direction. Rather, the argument proceeds on the basis that in assessing one of the relevant primary considerations, being that of protection of the Australian community and in particular the risk of the applicant re-offending (referring to para 13.1.2(1) of the Direction), the Tribunal failed to take into account the applicant's express representations by way of the SOFIC and the evidence of the Parole Decision and so omitted to have regard to information and evidence important to the assessment of risk and so important to the determination of the application.

72    Failure to comply with a ministerial direction made under s 499 has been held to amount to jurisdictional error: Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 at [34]-[35] (Mortimer J) and the authorities cited therein. More generally, considering material which has the requisite level of importance is part of discharging the Tribunal's review function: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] (Allsop J, Spender J agreeing). Where there has been an omission to consider evidence that bears upon a substantial and articulated argument and being a matter of importance to the application that would be expected to be addressed, then the Tribunal may have manifested a failure to discharge its statutory obligation: see generally the review of authorities by Allsop CJ (as they apply to the power conferred on the Minister by s 501CA(4) of the Migration Act) in Navoto v Minister for Home Affairs [2019] FCA 295 at [34]-[51]; and see, for example, in the context of the Tribunal Nguyen v Minister for Home Affairs [2019] FCA 892 at [49] (Colvin J).

73    On the Minister's case, whether or not such an omission might amount to jurisdictional error is to be determined having regard to SZMTA.

74    In SZMTA, the majority (Bell, Gageler and Keane JJ) held that a breach of a statutory provision which conditions the performance of the Tribunal's duty to conduct a review only operates to deny legal force to the decision of the Tribunal if that breach is material: at [44]. A breach is only material if compliance could realistically have resulted in a different decision: at [45], [49]. Whether there is such a realistic possibility is a matter to be adjudged on the evidence on the application: at [46].

75    The question of whether compliance with the limits on the Tribunal's functions and powers that were imposed, in this case by Direction 79, could realistically have resulted in a different decision is a question of fact on which the applicant bears the onus of proof: SZMTA at [46]. The question is to be determined by inferences drawn from evidence adduced on the application: at [46]. It is therefore inevitable that some evaluation of the evidence before the Tribunal is required, having regard to the need to draw inferences in order to consider whether compliance by the Tribunal could realistically have resulted in a different decision.

76    However, the first matter to resolve is whether the Tribunal did or did not have regard to the Parole Decision.

Alleged failure to have regard to the applicant's submission and the Parole Decision

77    There is no doubt that the Tribunal had regard to the SOFIC. The Tribunal ascribed to it the reference Exhibit A1 and then referred to it in its reasons on some four occasions. The Tribunal does not, however, refer to paras 15 or 54 of the SOFIC or their content. The only reference to para 53 is in that part of the reasons that address the submission of the lawyers for the applicant that the risk of re-offending is very low. However, the extent of its reference to para 53 is limited as follows:

Thirdly, Counsel submitted that the Applicant's conduct whilst in custody had been 'exemplary' (refer paragraph 53 of Exhibit A1).

78    There is no reference in the reasons to the fact that the applicant was granted parole. The Tribunal refers only to the Parole Assessment.

79    The contention advanced by the applicant is that the Court should conclude from the absence of any express reference to the Parole Decision in the Tribunal's reasons that the Tribunal did not consider it.

80    The obligation of the Tribunal is to provide written reasons that include its findings on material questions of fact and a reference to the evidence or other material on which the findings were made: s 43 of the Administrative Appeals Tribunal Act 1975 (Cth); and s 500(6G) of the Migration Act.

81    There are a number of reasons why the Tribunal might fail to refer to a matter in its reasons. Such failure may reflect that the matter was not considered by the Tribunal to be material. It may provide a basis for inferring that it was not considered at all: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [62] (Kenny, Griffiths and Mortimer JJ); and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (Katzmann, Griffiths and Wigney JJ). The position was summarised in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] (Bell, Keane and Gordon JJ) as follows:

[13]    The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any 'material questions of fact' and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

[14]    Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

(footnotes omitted)

82    Although concerned with a different statutory context, the reasons in Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [101] (Davies, Rangiah and Steward JJ) provide a useful example of the exercise of drawing an inference from the omission to consider relevant evidence (in that case a doctor's letter) on an assessment of risk to the Australian community: at [102]-[119].

83    In this case the applicant invites the Court to infer from the reasons that the Tribunal failed to consider the Parole Decision.

84    I accept the applicant's submissions that the Tribunal did not consider the Parole Decision. Whilst the Tribunal admitted into evidence the supplementary documents that included the Parole Decision and refers to the SOFIC, I infer from the absence of any reference to the Parole Decision that the Tribunal did not have regard to it. Merely accepting the supplementary bundle into evidence does not establish that any particular regard was paid to documents within it. The fact that the Tribunal refers to para 53 of the SOFIC in the brief terms I have set out above does not, in my view, assist the Minister. There are many matters included in that paragraph and I would not be prepared to infer from the brief reference to para 53 that matters of substance included within it were each in fact given consideration, unless there were other indications in the reasons that support such an inference. Nor is mere proximity of para 53 to para 54 persuasive in establishing that there was consideration of para 54. Relevantly, there are no other references to the Parole Decision in the reasons that would support such an inference.

85    This is a matter where the Tribunal addressed in detail over the course of some 40 paragraphs the risk of harm to the community and re-offending, placing emphasis on Mr Cicchini's evidence. The Tribunal had regard to Mr Cicchini's assessment of the applicant's prospects of re-offending as low, and explained why that was not an assessment shared by the Tribunal. It is apparent that in undertaking such an exercise, the Tribunal considered the evidence of a third party as to the risk of re-offending to be relevant. It also had regard to the Parole Assessment, an assessment that recommended the grant of parole but did not approve it or comment on the question of risk. It might be said that it should be inferred that the author of the Parole Assessment was aware of the nature of the decision required by the Board's Policy Manual and formed the view that the risk to the community was not unacceptable before making its recommendation, but there is no evidence that the Board's Policy Manual was before the Tribunal. Again, it would appear that the Tribunal gave some weight to the Parole Assessment as a report of a third party for the purpose of assessing the risk of re-offending.

86    In contrast, the absence of any reference by the Tribunal to the Parole Decision is telling. The Parole Decision was also a qualified view of a third party and, relevantly, the view of the body that is empowered to make decisions about parole, and it is surprising that it would not be mentioned if in fact the Tribunal took it into account. Even if one assumed that the Tribunal must have known that parole was granted, because so much might have been deduced from the fact that at the time of the hearing the applicant was in immigration detention rather than prison, there remains an absence of evidence that suggests the Tribunal had regard to the Parole Board's assessment that the applicant does not represent a unacceptable risk to the community or the reasons it gave for granting parole. Against a backdrop where the Tribunal carefully distinguished its conclusion of 'low to moderate' risk from Mr Cicchini's assessment of 'low' risk, one might expect to observe the Tribunal similarly engage with the content of the Parole Decision and potentially distinguish the risk assessment made by the Board and included in the Parole Decision, even taking into account the different function of the Parole Board and the Tribunal. If the Tribunal regarded the contents of the Parole Decision as lacking clarity or for some other reason not entitled to significant weight, one could reasonably expect that those matters would have been discussed in the reasons.

87    In my view the totality of the evidence supports an inference that the Tribunal overlooked the Parole Decision. I do not consider the evidence is such to found an inference that the omission indicates that the Tribunal did not consider the evidence to be material to the applicant's claims. I have taken into account the principle that relevance is a matter for the Tribunal: Nigam v Minister for Immigration and Border Protection [2017] FCA 106 at [16]-[17] (Perry J) (undisturbed by an appeal on different grounds). However, the focus on Mr Cicchini's assessment suggests that evidence from an authoritative third party as to the risk of re-offending was generally considered relevant by the Tribunal to the exercise of its discretion and was considered to be material. Similarly, the Tribunal had regard to the third party Parole Assessment.

88    To my mind, the Parole Decision was from an independent and authoritative source and was of some significance in a context where the Tribunal had regard to other such information that related to the issue of assessment of risk.

89    But it does not follow from a finding that the Tribunal overlooked the Parole Decision that there was jurisdictional error. Whether or not the Tribunal's failure to consider the Parole Decision amounted to a jurisdictional error turns on the importance of the ignored material to the Tribunal's process of decision-making. This question can be considered in the context of the Minister's submission as to the application of SZMTA.

Materiality

90    As noted above, the High Court in SZMTA states that the question of fact as to whether compliance with the limits on the Tribunal's functions and powers could realistically have resulted in a different decision is to be determined by inferences drawn from the evidence adduced on the application. It is therefore inevitable that some evaluation of the evidence before the Tribunal is required.

91    In carrying out this evaluation I note the caution in SZMTA against a court '[intruding] into the fact-finding function of the Tribunal': at [48]. The task to be undertaken is not a hypothetical merits review. In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40, the process to be undertaken was described by Yates, Murphy and Moshinksy JJ as follows:

[33]    … the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.

(original emphasis)

92    In this case, it is necessary to consider the reasons of the Tribunal (see SZMTA at [50], [71]) and the evidence that was taken into account. It is necessary to consider the Parole Decision to assess whether its significance was marginal to the Tribunal's consideration of the issue of the risk of re-offending, or whether its impact was potentially something more. For example, if the information provided by way of the Parole Decision adds nothing to what was provided by the Parole Assessment or other evidence, one could conclude that the Parole Decision was of marginal significance only and could not realistically have affected the Tribunal's decision not to revoke the visa cancellation.

The relevance of the Parole Decision

93    The Parole Assessment appears to have been produced by the Department of Justice, Corrective Services, for the purpose of provision to the Parole Board. The Parole Assessment states that it relates to the 'release considerations' under s 5A of the Sentence Administration Act. Under s 20 of the Sentence Administration Act, the Parole Board, in deciding whether it is appropriate to release a prisoner on parole, is to have regard to a number of matters, including the release considerations.

94    There are similarities between the Parole Assessment and the Parole Decision, although the former is more detailed. Both touch on the applicant's participation in voluntary courses and his willingness either to engage in counselling or to address his offending behaviour. Both refer to the need for urinalysis as a condition of parole.

95    There are, however, differences:

(1)    self-evidently, the Parole Assessment is only a recommendation and not a decision. The decision of the Board is provided by the Parole Decision;

(2)    the Parole Assessment does not expressly refer to the fact that the applicant is a first time offender, whereas the Parole Decision does;

(3)    whilst the Parole Assessment is in general more detailed, particular phrases in the Parole Decision are not included in the Parole Assessment: the applicant refers in particular to the reference to the 'salutary impact of the first term of imprisonment' and that the applicant's 'participation in voluntary courses demonstrates a motivation and willingness to address offending behaviour';

(4)    whilst the Parole Assessment sets out matters relevant to a risk assessment it does not purport to describe the degree of risk. It does, however, recommend early release on parole. The Parole Decision, on the other hand, describes the degree of risk. It describes that degree of risk in accordance with the Board's published Policy Manual which uses the language of acceptable risk and unacceptable risk; and

(5)    it appears that the Parole Assessment was prepared on the assumption that the applicant would likely be deported to Vietnam immediately upon release, whereas such an assumption is absent from the Parole Decision, which contemplates that the applicant might challenge his removal and be successful in the revocation of the cancellation of his visa.

96    Some of those differences are arguably so minor as to be insignificant. A reading of the reasons as a whole indicates that the Tribunal was aware that the applicant was a first time offender. Whilst neither the reasons nor the Parole Assessment use an expression along the lines of the 'salutary impact' of a first experience of imprisonment, the Parole Assessment refers to the applicant's disappointment in his own conduct which objectively reflects some regret and insight. Both the Parole Assessment and the Parole Decision refer to his participation in voluntary courses. The language of a 'willingness to address offending behaviour' appears only in the Parole Decision but there are references in the Parole Assessment to the applicant's focus on maintaining abstinence from drug use and to his motivation to engage in employment and start a family. Those matters can fairly be said to reflect an intention to address offending behaviour.

97    I am not persuaded that the assumption by the author of the Parole Assessment that the applicant was to be deported on any release undermines the relevance of the task it undertook in reporting on the release considerations and making its recommendation that parole was to be supported. If its practice was to assume that any parole was in effect notional because the former visa holder would not return to the community but would be deported, there would be no purpose in providing the detail that is contained in the Parole Assessment and no purpose in considering conditions of parole. The applicant's submission in effect invites the Court to view the Parole Assessment as a somewhat artificial exercise, and I am not persuaded that I should view it in that way.

98    To my mind, even accepting the value of the Parole Assessment as a recommendation, the Parole Decision has greater authority, being a decision of the Board and comprising a formal decision rather than a recommendation. Further, and importantly, it includes a risk assessment: that release would not present an unacceptable risk to the (Australian) community.

99    I take into account that the Board's consideration of risk for the purpose of parole does not require the longer term view that might be relevant to a decision-maker such as the Tribunal. I also take into account that the Board imposed conditions on parole, including urinalysis testing. I accept the Minister's submission that the Board did not assess that there was no risk to the community. However, it would seem that the Board was not required to be satisfied that there was no risk (and nor, under the Direction, is it a requirement that the Tribunal be satisfied that there is no risk). The terms of the Board's Policy Manual refer to 'acceptable risk' as against 'unacceptable risk'. Furthermore, having assessed that the risk was not unacceptable, the Board said that the conditions of parole would 'further' reduce the risk to the safety of the community.

100    Consideration by the Tribunal of the fact that the Board had ordered that parole should be granted and had assessed that the risk to the community was not unacceptable could realistically have justified a stronger finding in the applicant's favour on the assessment of risk. The evidence of one third party on that issue was contemplated and distinguished but the view of another third party was overlooked. Had the Tribunal considered the decision along with the decision of Mr Cicchini, then it is realistically possible that such consideration could have resulted in the Tribunal making a different decision. For example, it is realistically possible that the Parole Decision, considered alone or in conjunction with Mr Cicchini's assessment, might have persuaded the Tribunal to assess the risk of re-offending as 'low' rather than 'low to moderate' (para 107 of its reasons). It may have affected its assessment of 'unacceptable risk' of harm to individuals' (para 108 of it reasons). It is realistically possible that the Tribunal might have weighed the primary and other considerations under the Direction differently had that material been taken into account, and that such information might have tilted the balance in favour of revocation. Indeed, the Minister appeared to accept the possibility that an assessment of risk may have been recalibrated as 'low', although the Minister submitted that such a result would not affect the weighing of the relevant considerations. That may or may not be so. The weighing of considerations under the Direction is a matter for the Tribunal and not this Court.

Conclusion

101    Consideration of the omitted material could realistically have resulted in the Tribunal making a different determination. It follows that the applicant has been deprived of the realistic possibility of a successful outcome by the error. The Tribunal’s error was a material error. Having regard to the obligations of Direction 79, the Tribunal failed in the exercise of its discretion in that it considered and weighed the primary consideration of protection of the Australian community without having regard to, and so without giving appropriate weight to, material information and evidence as to parole provided by the SOFIC and the Parole Decision. It failed to engage in an active intellectual process by failing to have regard to available material information. Accordingly, whilst the taxonomy of jurisdictional error is such that there may be a number of ways in which the error is categorised, I accept the applicant's submission that there was a constructive failure by the Tribunal to carry out the statutory task.

102    It follows that the Tribunal's decision will be set aside and the matter remitted.

103    Unless the parties are able to propose orders by consent as to costs, the applicant may apply for costs.

Associate:

Dated:    14 February 2020