FEDERAL COURT OF AUSTRALIA

YKSB v Minister for Home Affairs [2020] FCA 476

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 15 November 2019 be dismissed.

2.    The applicant pay the first respondent’s costs of the application to be fixed by way of a lump sum.

3.    On or before 4 pm on 28 April 2020, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant has applied to the Court for review of a decision of the Administrative Appeals Tribunal affirming a decision by a delegate of the first respondent, the Minister, not to revoke the mandatory cancellation of the applicant’s visa. The non-revocation decision was made on 31 January 2019, under s 501CA(4) of the Migration Act 1958 (Cth).

2    The Tribunal’s decision was made on 24 April 2019.

3    For the reasons set out below, the application will be dismissed.

Background

4    The applicant is a citizen of the United Kingdom. He moved to Australia from Scotland with his family in June 1965, when he was 13 years old. He has resided in Australia ever since, and at the time of the Tribunal’s decision was in his late sixties. The Tribunal’s reasons record (at [109]) that the applicant initially offended some four and a half years after arriving in Australia, comprising relatively minor offending, and again in April 1979 by assaulting a police officer or person assisting police. However, the conviction which triggered the mandatory cancellation of his visa was a conviction in December 2017. The applicant was convicted of six counts of indecent assault of a person under 16 years of age, and one count of gross indecency in the presence of a person under 16 years of age. The conduct on which those convictions were based occurred between 1982 and 1990, when the applicant was in his thirties. The conduct was described in detail in the Tribunal’s decision, and there was no dispute on this application that the Tribunal was correct to describe the offending (at [109] and elsewhere in its reasons to similar effect) as “undeniably and extremely serious”. In his evidence to the Tribunal, the applicant made what the Tribunal described in its reasons at [23] as a “ready acknowledgment” about the gravity of the offending.

5    The applicant’s evidence, and the case presented on his behalf to the Tribunal, sought to place his offending in the context of a disrupted and alcohol-affected period of his life, which the applicant profoundly regretted, and which bore little resemblance to his more recent life circumstances that involved a stable relationship, the support and watchfulness of his family, his registration as a sex offender, and his relatively low-level risk of reoffending, as assessed by two clinical and forensic psychologists (Mr Jeffrey Cummins and Dr Lauren Ducat) who gave evidence before the Tribunal.

The Tribunal’s decision and the Applicant’s grounds of review

6    The Tribunal applied, as it was required to, the guidance provided by Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Direction No 79 is a direction given by the Minister pursuant to s 499 of the Migration Act.

7    At [7]-[8] of the applicant’s submissions, the applicant described the pertinent aspects of the Tribunal’s decision and the factors it examined, in the context of the grounds of review pursued in this Court. I accept this is an accurate summary, and refer in more detail to the Tribunal’s reasons below, where necessary to resolve the grounds of review:

The Tribunal considered each of the ‘Primary Considerations’ set out in the Direction: the protection of the Australian community, the best interests of minor children and the expectations of the Australian community. In addressing the ‘Other Considerations’ set out in the Direction, it considered in particular the strength, nature and duration of the Applicant’s ties to Australia, the impact of a decision not to revoke the mandatory cancellation on victims of the Applicant’s offending and the extent of any impediments the Applicant would suffer on return to Scotland. It was agreed between the parties that the best interests of minor children; the strength, nature and duration of the Applicant’s ties to Australia and the extent of impediments the Applicant would suffer on return to Scotland weighed in the Applicant’s favour. Accordingly, the dispute was focused on how much favourable weight should be given to those considerations; and as to the remaining considerations, whether they weighed for or against the Applicant and how much weight should be given to them.

The grounds of this application concern the Tribunal’s assessment of the protection of the Australian community, the impact of a non-revocation decision on victims of the Applicant’s offending and the impediments the Applicant may face on return to Scotland.

(Footnote omitted.)

8    Consistently with the summary I have just extracted, the applicant set out six grounds of review in his amended application. The sixth ground was not pressed. The five grounds were summarised in the following way in the applicant’s written submissions:

By his amended originating application dated 15 November 2019, the Applicant contends that the Tribunal failed to comply with ‘Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA’ (Direction), or otherwise failed to exercise the discretion or to carry out the statutory task in s 501CA(4) of the Act according to the law, and/or to afford the Applicant procedural fairness, in the following respects:

1)    In purporting to consider the primary consideration ‘protection of the Australian community from criminal or other serious conduct’, the Tribunal instead considered whether the Applicant deserved to remain in Australia given the nature and seriousness of his offences; or otherwise considered the nature and seriousness of his offending in a manner not relevant or referable to the primary consideration. In doing so it misconstrued the terms of the Direction and asked itself the wrong question.

2)    In weighing the seriousness of the Applicant’s past offending (as part of considering the protection of the Australian community from criminal or other serious conduct), the Tribunal relied in part on a 1979 conviction for assaulting police, which it regarded as serious offending. However, the Applicant gave unchallenged evidence that that this offence did not attract a conviction, and in any event had not involved the commission of violence against police. In the circumstances, the Tribunal’s finding that this matter constituted serious offending such as to weigh against the Applicant lacked an evidentiary foundation; and in reaching that view the Tribunal failed to afford the Applicant procedural fairness.

3)    In considering the protection of the Australian community from criminal or other serious conduct, the Tribunal failed to consider the relevance of the Applicant’s physical ill-health. This was a distinct and significant feature of the Applicant’s claims.

4)    In considering the protection of the Australian community from criminal or other serious conduct, and contrary to the conclusion of two psychological reports that the Applicant posed a low risk of reoffending, the Tribunal concluded that the Applicant posed a low to moderate risk of reoffending. That conclusion lacked an evident or intelligible basis and so was legally unreasonable, or else revealed a misapprehension of the evidence before the Tribunal.

5)    Written and oral evidence before the Tribunal indicated that the Applicant had a limited capacity to navigate official forms, processes and systems, and relied heavily on others in doing so. This bore upon the likelihood that he would access adequate medical and social support in Scotland, and in turn, upon the impediments that he may face if returned to Scotland. The Tribunal did not accept that the Applicant was limited as claimed, on the basis that he had part-owned an automotive repair business. However, there was no evidence before the Tribunal to substantiate its assumption that the Applicant’s part-ownership of a business entailed any skills that might demonstrate a capacity to navigate official forms, processes and systems. The Tribunal’s finding lacked an evidentiary basis, or was irrational or unreasonable.

Resolution

9    I have previously set out my approach to Direction No 65, the predecessor to Direction No 79, in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [26]-[34]; see also Murphy v Minister for Home Affairs [2018] FCA 1924 and Umi v Minister for Home Affairs [2019] FCA 2148. I adopt those observations in my approach to the resolution of the issues in this proceeding.

Ground 1

10    Under this ground, the applicant contends the Tribunal asked itself the wrong question, or misconstrued Direction No 79, by giving an impermissibly wide operation to a particular aspect of one of the primary considerations set out in Direction No 79.

11    Section 13 of Direction No 79 provides that, when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, there are three 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.

12    As to the first of these, paragraph 13.1 directs decision-makers to consider the following matters:

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    Then, under the heading “nature and seriousness of the conduct”, 13.1.1 provides:

13.1.1    The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

f)    The cumulative effect of repeated offending;

g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

i)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

14    The applicant’s argument is that, despite the long list of factors in 13.1.1, the nature and seriousness of a person’s criminal offending is not to be considered “at large”; rather, it is relevant only insofar as it contributes to an assessment of what the protection of the Australian community requires in a given case.

15    The applicant contends that, contrary to the correct approach, the Tribunal in this case undertook its own assessment of the nature and seriousness of the applicant’s offending, as if it were the sentencing court. The Tribunal, he contends, set itself up as an arbiter of the gravity of the applicant’s conduct, and did so by only referring to the adverse aspects of the sentencing judge’s remarks, excluding those which tended in favour of the applicant. The applicant submits he made this point clearly in written submissions to the Tribunal, where he submitted:

In short: the Applicant accepts the gravity of his offending. He pleaded guilty to and was punished for it. Self-evidently, this is not an opportunity for further punishment, nor should Direction No 79 be applied punitively. The present primary consideration is concerned with protecting the Australian community.

16    Despite having its attention drawn to the distinction, the applicant submits the Tribunal, in making findings at [77]-[79] of its reasons, decided to take an impermissible approach:

It is propounded on behalf of the Applicant that he had pleaded guilty to his criminal offending and has been punished for it. On that basis, the Applicant contends that, “… this is not an opportunity for further punishment, nor should Direction No 79 be applied punitively. The present primary consideration is concerned with protecting the Australian community”. The difficulty in accepting that contention is that the application of the Direction is not conditioned by a preliminary consideration of whether its application will have the effect propounded by the Applicant.

The Direction is applied (for the purposes of this Primary Consideration A) for the protection of the Australian community. The Applicant’s criminal offending was punished by a sentencing regime contained in relevant legislation governing criminal conduct in the State of Victoria. The Direction is to be applied in the instant case to determine the outcome of the Applicant’s migration status in this country pursuant to the Commonwealth Migration Act. The outcome of one is not interdependent or otherwise related to the other. Judicial officers sentencing applicants for their criminal offending do not take into account any adverse impact of their sentences upon that person’s migration status. It follows that nor should a decision-maker in my position take into account the effect of this decision on what may have befallen the Applicant in the Victorian criminal courts.

While outcomes arising from a clinical and prudent application of the Direction may well result in an additional adverse outcome for an applicant, the Direction must be applied with reference to, but independently of, the previous sentencing result for an applicant’s criminal offending.

(Footnote omitted.)

17    The Tribunal concluded at [88] of its reasons:

For the purposes of this Primary Consideration A, I am of the view that this Applicant has committed extremely serious crimes of a sexual nature against children in the Australian community and, on that basis, it is correct to allocate a very heavy level of weight to this Primary Consideration A in favour of non-revocation. I am of the further view that this Applicant’s criminal offending in this country is of such a serious magnitude that any risk of similar conduct in the future is unacceptable. I make this finding even in the circumstances of the countervailing opinion of Mr Cummins and the more conditional countervailing opinion of Dr Ducat. Were this Applicant to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial and, quite conceivably, catastrophic.

18    The Tribunal was, the applicant contends, setting itself up as an arbiter of the applicant’s right to remain in Australia in a way that the task in s 501CA, read with Direction No 79, does not permit. The Tribunal was, the applicant contends, asking itself whether it was morally appropriate to readmit the applicant to the Australian community.

19    Although I have some misgivings about the language used by the Tribunal, the applicant’s arguments on ground 1 should not be accepted. In my opinion, the Tribunal applied itself correctly to the task required of it by Direction No 79. It considered each of the factors set out at 13.1.1 of Direction No 79 which it identified as relevant: see [25]-[47]. That is what it was required to do.

20    In its reasons, it is clear from the language used that the Tribunal was seriously affronted by the nature of the applicant’s offending conduct and considered it abhorrent. The Tribunal employed a series of adjectives and descriptions which make its affront clear. It referred to the applicant’s offending as “appalling” and “shocking”; when considering the vulnerability of the applicant’s victims, it referred to the “generational difference … between the age of the victims and the Applicant”; it stated that “[t]he extremely serious nature of the Applicant’s offending stridently militates against acceptance of any suggestion that the nature of the harm were he to reoffend in the future would not be serious”; and it quoted the sentencing judge’s observation that “[v]ulnerable children were cynically exploited with a brutal lack of regard and respect for them”, with emphasis added by the Tribunal.

21    It was open to the Tribunal on the evidence to form this adverse view of the applicant’s offending conduct. There was nothing irrational or illogical about it doing so, in light of the nature and circumstances of the offences, and the remarks of the sentencing judge. The transparency with which the Tribunal expressed itself in its reasons – considering some of the purposes of the giving of reasons as an explanation for the outcome reached by a decision-maker – is not necessarily to be criticised. The applicant, and others reading the decision, could be left in no doubt about the view taken by the Tribunal after it had considered the evidence and information before it. There was, I emphasise, no allegation of actual or apprehended bias made on this application, or before the Tribunal.

22    There are aspects of the language used by the Tribunal which do tend to the moralistic, or to the language one might expect to find in a sentencing judgment, for example paragraphs [41] and [42]:

Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of the offending. The Applicant’s multiple sexual assaults against children is offending that was perpetrated for something in the order of eight years. It involves a shocking lack of judgment and absence of self-control. It undeniably demonstrates an inability to distinguish right from wrong.

It is offending that, in the most appalling way, is not respectful of the personal rights of other quite vulnerable members of our community. Ultimately, it is offending that is not respectful of the lawful authority governing the rights of those vulnerable victims. The overwhelming majority of the remainder of the Australian community respect those laws and do not attack the vulnerable in our midst. Despite his offending, the Applicant now seeks to be re-admitted to the Australian community.

23    Despite this language, reading the Tribunal’s reasons fairly, I find that while the Tribunal was making clear its own views about the nature and seriousness of the applicant’s offending, it did so for the purpose of assessing what weight should be given to one of the stipulated primary considerations in the revocation decision – protection of the Australian community.

Ground 2

24    This ground concerns the Tribunal’s reference to an offence in 1979 which appeared on the applicant’s police record. At [33] the Tribunal stated:

While not necessarily ventilated to any great extent at the hearing, the Applicant’s criminal history discloses an offence committed on 2 April 1979 described as “Assault police/person assaulting police”. The Applicant was dealt with for this offending at the Moonee Ponds Magistrates Court and fined the sum of $40. While this offending may not as readily attract an application of this sub-paragraph (c) of paragraph 13.1.1(1) of the Direction, it is, nevertheless, offending against “government representatives or officials due to the position they hold, or in the performance of their duties….”. As such, the offending must be regarded as, at least, “serious”.

25    The applicant contends he gave “unchallenged” evidence to the Tribunal that no conviction was recorded for this offence and he did not recall receiving a fine. Further, he submits the Minister abandoned any reliance on this offence in closing submissions before the Tribunal.

26    The applicant submitted there was insufficient evidence for the Tribunal to conclude, as it did in [33], that the offence was of a “serious” nature, and further submitted that, in making the finding at [33], the Tribunal denied the applicant procedural fairness. He submitted that had it been clear the Tribunal proposed to give weight to that offence, he would have made further submissions about the circumstances and would have followed up in more detail whether a conviction had been recorded.

27    While the Minister accepted that in oral closing submissions before the Tribunal no reference was made to this offence, the Minister also pointed out that the police record could be taken as probative of the findings of the Tribunal in [33]. I accept that document suggests on its face that the applicant was convicted, because it records he was fined. In contrast, an earlier offence in 1970 is recorded in the same document as “adjourned to 1.12.71 on $20 good behaviour bond. Struck out on 1.12.71”. That entry clearly implies that for the 1970 charge, no conviction was recorded. On its face, the entry for the 1979 offence suggests the contrary. The Tribunal was entitled to rely on the police record. It is also correct, as the Tribunal found, that Direction No 79 identified such conduct as serious.

28    The weight that could be given to the applicant’s police record as produced to the Tribunal, aside from the 2017 convictions, was clearly an issue before the Tribunal. As the Minister points out in his written submissions, evidence was led from the applicant about various previous offending, including some rather confused evidence about events in 1979 which may well have related not to the offence in the police record but to another charge that was dropped. It is not necessary to explore the detail in these reasons. The point to be noted is that the applicant and his legal representatives were well aware of the need to address all previous conduct of the applicant which disclosed criminal offending, and how that was done was a forensic decision for the applicant’s legal representatives. The applicant and his legal representatives were plainly on notice that the police record could be relied on by the Tribunal. This material was within the principles set out by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591-92: the applicant’s 1979 offence on his police record was an issue which was, from the nature of the decision and the terms of Direction No 79, apparent on the known material.

29    Ground 2 fails.

Ground 3

30    By this ground, the applicant contends that the Tribunal left a factor out of account in its consideration of what weight to give to the need to protect the Australian community from risks that the applicant might reoffend in the future. The applicant submits his ill health substantively reduces the likelihood of any future reoffending, and the Tribunal failed to recognise this. He contends he made a specific representation about this to the Tribunal, and it was not taken into account.

31    For example, the applicant’s submissions to the Tribunal contended at [37]:

There is no evidence before the Tribunal of an unacceptable risk of reoffending. The suggestion that the Applicant might suddenly resume offending, after three decades of good conduct and despite profound improvements in his emotional and social wellbeing, a sustained shift in his drinking habits, the best evidence of treating medical professionals, increasingly poor health and indeed, the prospect of death and now, the knowledge that any further offending would almost inevitably lead to his deportation, is fanciful. This consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

32    The applicant relied on evidence to support this contention, including a report produced by Dr Ducat as part of the sentencing process for his 2017 convictions. At [47] of the report, Dr Ducat stated:

[The applicant] has reportedly had access to his young grandchildren and on the basis of his self-report there appears to have been no claims or investigation of abusive behaviours towards them. A significant amount of time has elapsed since the offences, and I have no current evidence to suggest that he continued to offend during that time, even though he had opportunity. He is now in his mid-60’s, with significant health concerns and reduced libido, all of which serve to further reduce his risk.

33    The principles governing this ground have been articulated recently by many full courts. They are conveniently collected in the Full Court’s decision in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89].

34    In summary, in performing the statutory task required by s 501CA(4), a decision-maker must give active intellectual consideration to each representation which is clearly articulated (whether expressly or because it arises plainly on the material) as “a reason” that the mandatory visa cancellation should be revoked. Omitting or overlooking a clearly articulated representation, or failing to engage in an active intellectual sense with it, are capable of being characterised as errors affecting the jurisdiction of the decision-maker.

35    A reviewing court must undertake a qualitative assessment whether the decision-maker has, as a matter of substance, had regard to the representations made: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45].

36    In my opinion, the Tribunal’s reasons indicate it was aware of the evidence about the applicant’s declining health. At [149], it found:

The Applicant is a man of advancing years, currently aged 66 years. He does not enjoy overly good health having being diagnosed with pulmonary fibrosis, histiocytosis X and emphysema. He is medicated for those conditions holding prescriptions for seven medications on a daily basis including Ventolin and Seretide MDI Inhalers. Apart from his physical health problems, it is contended on behalf of the Applicant that his mental health has deteriorated as a result of both his incarceration for his criminal offending and these resulting proceedings.

(Footnote omitted.)

37    At [83], having found at [82] that, based on the reports of Mr Cummins and Dr Ducat, the applicant represented a “low to moderate risk of reoffending”, the Tribunal stated:

I am mindful of the factors militating in favour of a low risk of recidivism for this Applicant. As noted by Dr Ducat, the number of relevant risk factors significantly decrease over time. In particular, I note and accept that since his offending, the Applicant has spent a considerable period of time in the community, with access to children but with no reported offences or other incidents warranting external intervention or investigation. I am also mindful (and accepting of) the opinion of both medical experts that an offender’s advancing age is associated with lower rates of recidivism and that rates of sexual recidivism drop significantly after offenders reach the age of 50, reducing even further after they reach the age of 60.

(Emphasis added.)

38    In the next paragraph, the Tribunal set out a number of factors from the evidence which it considered tended in the other direction:

As against that, I am also mindful of Dr Ducat’s abovementioned caution about a suggested likelihood (arising from the demeanour of the Applicant as he presented to her) of a deviant sexual interest in pre-pubescent girls at the time of the offences and that further assessment of such interests may be needed to explore this further. I also note that such ongoing assessment of any current inclination towards deviance might be warranted as part of the Applicant’s offence-specific treatment. This is why I have not exclusively categorised the Applicant’s risk of offending as just “low” but have preferred to find that his risk is more accurately assessed as “low-moderate”. In an ultimate sense, it would be safest to categorise of his offending in the exclusively “low” category after he undertook the offence-specific treatment nominated by Dr Ducat.

39    In the circumstances, this is sufficient engagement with the representation made.

40    Ground 3 fails.

Ground 4

41    This ground also concerns the Tribunal’s approach to the assessment of the risk of reoffending posed by the applicant. It contends that the Tribunal’s finding, which I have extracted above, that the applicant’s risk of reoffending was “low to moderate” was a legally unreasonable conclusion, in light of the fact that two forensic psychologists had both assessed the applicant’s risk of reoffending as “low”.

42    The applicant submits that the Tribunal’s use of what Dr Ducat said in her report about the possibility the applicant had a “deviant sexual interest in pre-pubescent girls” went further than the use to which Dr Ducat herself put that opinion. The applicant also contends that the fact the applicant was not ordered to undergo any offence-specific treatment as part of his sentence, a matter on which Mr Cummins remarked, “undermine[s]” the Tribunal’s conclusion the applicant posed a low to moderate risk.

43    The applicant then challenges the Tribunal’s reasoning in [85], contending the Tribunal purports to identify two “grounds” for its assessment of low to moderate risk, but then does not in fact set out those two grounds.

44    I reject the applicant’s submissions on this ground. Commencing with the last point, the Tribunal explained the “two grounds” in the very next paragraph, [86]. They were that the applicant’s “family is watching him” and the “community is watching him” (the second being a reference to the applicant being a registered sex offender). What the Tribunal is saying in [85]-[86] is clear enough: it might otherwise have been inclined to assess the risk of reoffending as higher than “low to moderate”, but the two factors mentioned in [86], taking the place of what is usually described as “insight”, were sufficient for the Tribunal to be satisfied the appropriate level of risk was described as low to moderate. That is an intelligible justification for its conclusion.

45    Further, the Tribunal was entitled to use Dr Ducat’s opinions in a way she did not, provided such use was procedurally fair and not irrational or illogical. On one testing method, as the Tribunal noted at [82], Dr Ducat had assessed the risk as low to moderate. On another, she had assessed it as low. The Tribunal referred to these matters in [82], immediately before the impugned finding. As I have noted, the Tribunal was clearly troubled by the nature and circumstances of the applicant’s offending. Despite what his family had said in evidence, it is clear the Tribunal harboured more doubts than the applicant’s family about his risk of reoffending. That was an evaluation which was within the decisional freedom available to it on the evidence. It did not have to be persuaded by what the applicant’s family said. Nor by what the applicant or Mr Cummins said. It could make its own assessment, within the bounds of rationality and logic. That is what it did. The assessment of the level of risk posed by the applicant was a matter for the Tribunal. It could derive assistance from expert evidence but ultimately its task was to reach its own conclusion, which it did. It explained why it did so in an intelligible way.

46    Ground 4 fails.

Ground 5

47    This ground involves a short point, challenging the Tribunal’s finding at [157], relating to the extent of impediments the applicant may face if removed to Scotland:

There was some level of contest in the oral submissions about the Applicant’s capacity to re-establish himself in Scotland. To my mind, a valid contention was made with reference to the sizeable amount of immediate and extended family and friends the Applicant has in Australia compared to the extent of such connections he has in Scotland. He is not devoid of family connections in Scotland. He has “a few cousins and uncles” in Scotland, although he does not regularly communicate with them. A less valid contention involved a suggestion that the Applicant was not a good organiser and would experience difficulty in, for example, registering with the Scottish equivalent of Centrelink and/or Medicare. I am not convinced by that sort of contention because it is plain from the material that the Applicant has been able to sufficiently organise himself in Australia by virtue of his operating a motor vehicle repair business that has operated for a number of years. It would be trite to now say that he was wholly or substantially reliant on others to organise things such that (1) the business could be established and (2) could operate as a going concern.

(Footnote omitted; emphasis added.)

48    It is the part in bold which is challenged. Representations made to the delegate and which were before the Tribunal on this matter included statements such as the following from the applicant’s son:

I believe that if [the applicant] is forced to return to Scotland that he would face extreme hardship as he would be isolated and without the family connections that he has in Australia. My father is also someone that struggles to navigate simple systems and requires assistance with basic items like forms and understanding government processes. He will quite often ask me what something means in terms of a superannuation, forms and more recently processes with legal proceedings and his current incarceration. I have no doubt he struggle to navigate a foreign system without support and our family really has no idea how the system in Scotland works.

49    The applicant contends the Tribunal’s finding was made without an evidentiary basis, because the only evidence before the Tribunal was about the applicant’s conduct in the “service-related” aspect of his business: that is, servicing motor vehicles. What if any part he took in the administrative or financial side of the business was not the subject of any evidence, the applicant contends. The applicant contends the finding lacked an evidentiary basis or was irrational or legally unreasonable.

50    The Minister pointed to the following evidence given by the applicant in a statement dated 25 June 2018:

I would like to work, as I’ve said, if I am permitted to stay. I worked for many years as a partner at Earle and Jill Motors, in Werribee. I have a business partner, Earle Baker, who is a qualified mechanic. I am a qualified panel beater. Years ago I went to Sunshine Tech and did a four year apprenticeship to become a qualified panel beater. About eighteen years ago we went into business together. We were making seventy thousand a year or so after the bills were paid. We were happy with that and it was a good living. When I get out, if I get my visa back, I might sell out of the business and just do some part time work somewhere else.

51    If needed, this specific evidence was sufficient to render the Tribunal’s finding open on the evidence. It was more than a “skerrick”: see Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; 205 FCR 227 at [31]. This evidence disclosed not only the applicant’s partnership in the business but also the undertaking of a four-year apprenticeship. It also disclosed the business had reasonable revenue. The applicant did not expressly disclaim any involvement in the running of the business. Indeed he said he was in business “together” with his business partner. The first part of [157] must also be considered: the Tribunal had found the applicant would have access to some family in Scotland.

52    The Tribunal’s finding is not sheer speculation or bare assertion; it is the drawing of an inference when all of the evidence about the applicant and his working life were considered which was capable of being seen as according with the “probabilities of ordinary human experience”: Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 at [35].

53    Ground 5 fails.

One further matter

54    At [120] of its reasons, the Tribunal stated:

At the hearing, the Applicant spoke of wanting to return to the community to, in effect, redefine his life and to re-engage with his immediate and extended family and otherwise participate as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation. Ultimately, paragraph 13.1(1) of the Direction decides this question: I am of the view that the extremely serious nature of the Applicant’s offending in this country is such that the Australian community would expect that he should not hold a visa to remain here.

(Footnote omitted; emphasis added.)

55    Other authorities have commented on the difficulties generated by the terms of Direction No 79 (and its predecessor Direction No 65) in their references to the “expectations of the Australian community” and the use of the word “privilege” in the Direction. Such value-laden concepts may encourage the kind of observations made by the Tribunal at [120]. There was no ground of review directed at [120], but it should be observed that it is unhelpful, and inappropriate, for a decision-maker to pose a question to itself about whether a person in the applicant’s position “deserves” to remain as a member of the Australian community. The task conferred by s 501CA(4), while it involves matters of fact and degree, evaluation and opinion, is more objectively based than the Tribunal’s rhetorical question implies. It would be preferable to avoid such statements.

Conclusion

56    The application must be dismissed. There is no basis for anything but the usual order as to costs.

57    While I have not accepted any of the applicant’s grounds of review, it can be readily appreciated that the applicant and his family will struggle to come to terms with the fact that the Tribunal’s decision will stand, and that the applicant is a step closer to being removed from Australia. The strength of the commitment shown to the applicant by some members of his family in their evidence and statements before the Tribunal was accepted by the Tribunal: see [132]-[133] of the Tribunal’s reasons. These are events which will, as the statements of support to the Tribunal made clear, adversely affect a large extended family. That consequence can be publicly acknowledged, but it does not affect the Court’s task on review.

Associate:

Dated:    14 April 2020