FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2020] FCA 538

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the decision of the Administrative Appeals Tribunal is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) given on 13 March 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), not to revoke the automatic cancellation of the applicant’s Partner (Subclass 801) visa (the visa).

2    The further amended originating application contains four grounds of review which were summarised by the applicant in his outline of submissions as follows:

(1)    the Tribunal failed to take relevant material (a Pre-Release Report dated 7 June 2018 prepared by the Silverwater Parole Unit) into account in its decision (Ground 1);

(2)    the Tribunal misconstrued the nature and seriousness of the applicant’s conduct and/or did not take into account relevant material concerning the nature and seriousness of the Applicant’s conduct (Ground 2);

(3)    the Tribunal made significant or substantial findings in the absence of evidence and/or by failing to take into account relevant considerations (Ground 3); and

(4)    the Tribunal did not afford procedural fairness to the applicant, by denying him an opportunity to be heard in respect of specified matters (Ground 4).

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

2.    EVIDENCE

4    In addition to the Court Book (received as exhibit A1), the applicant relied upon the affidavit of Megan Carter affirmed on 28 June 2019 which annexed a transcript prepared by Ms Carter of the hearing of the applicant’s application for review before the Tribunal (the Tribunal transcript). No point was taken by the Minister as to the accuracy of that transcript. The Court Book was supplemented by the documents in exhibit R1.

3.    BACKGROUND

5    The applicant is a citizen of India aged 30 who first arrived in Australia in early 2008. He was granted the visa on 2 October 2014 (CB80, 63).

6    The applicant was convicted by a jury in the District Court of New South Wales of 11 dishonesty offences (Deal with Identity Information to Commit etc Indictable Offence) which took place during the period 17 December 2014 and 10 February 2015. The offences involved the applicant impersonating others or creating false identities in order to obtain funds from various financial institutions. In sentencing the applicant on 22 May 2017, Toner J held that while the applicant continued to maintain his innocence, “there was an overwhelmingly powerful case against him from the beginning”. His Honour also held that while some of the offences were more serious than others, this was “not by much” given that “the moral culpability is about the same in relation to each matter because no doubt each activity was commenced with the same ambition in mind”, namely, “stealing money off banks” (CB59-60). His Honour sentenced the applicant to a total aggregate term of imprisonment of 7 years with a non-parole period of three years and six months (CB62).

7    Given the sentence imposed, there was no dispute that the applicant did not pass the character test or that the visa was properly the subject of mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

8    Pursuant to s 501CA(4) of the Act, the Minister (and therefore her or his delegate) may revoke the decision to cancel an applicant’s visa under s 501(3A) if:

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

(b)    the Minister is satisfied:

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

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

9    With respect to the proper construction of s 501CA(4), the Full Court held in Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 (and cited by the Tribunal at [6] of its reasons) that:

21. … There has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…

10    As the Tribunal correctly explained in its reasons at [7]-[8], this means that if the Minister finds that there is “another reason” why the decision to cancel an applicant’s visa should be revoked, the Minister must revoke the cancellation. The word “may”, in other words, does not in this context import a discretion. Rather, the decision is an evaluative one.

11    On 19 December 2018, the delegate decided not to revoke the mandatory cancellation (CB16).

12    On 24 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB3). The applicant attended a hearing before the Tribunal on 5 March 2019 without representation and was cross-examined. As I have earlier mentioned, a transcript of the Tribunal hearing was in evidence.

13    Before the Tribunal the applicant argued that he was innocent of the 11 charges of which he was convicted, that save for the incompetence of his lawyers he would not have been convicted, that he had an appeal against his conviction on foot, and that there was a low risk of him offending in the future given his innocence and the reports in relation to his sentencing and parole.

14    On 13 March 2019, the Tribunal affirmed the delegate’s decision (CB508).

15    First, the Tribunal found, consistently with the applicant’s concession, that the applicant did not pass the “character test” as defined in s 501(6) of the Act (Tribunal reasons at [10]-[11]).

16    Secondly, the Tribunal correctly found at [12] that it was bound by virtue of s 499(2A) of the Act to comply with Direction No 79 Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501CA (Direction 79) and that, therefore, it must take into account the Primary and Other Considerations relevant to the individual case in determining whether to revoke the mandatory cancellation of the visa (paragraph 8, Direction 79). As explained by the Tribunal, paragraph 13(2) of Direction 79 provided that there were three Primary Considerations which it was required to take into account, namely:

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

(b)    The best interests of minor children in Australia;

(c)    Expectations of the Australian community.

(Primary Considerations A, B and C respectively)

17    Paragraph 14 of the Direction provided a non-exhaustive list of the Other Considerations required to be taken into account, namely:

(a)    International non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    Impact on Australian business interests;

(d)    Impact on victims;

(e)    Extent of impediments if removed.

18    Primary Considerations “are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. … In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (Colvin J) (and quoted by the Tribunal at [16] in its reasons); see also Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (HSKJ) at [37] (the Court).

19    The Tribunal found that the factor “Protection of the Australian Community” (Primary Consideration A) weighed heavily in favour of non-revocation of the mandatory cancellation. Its reasons for so finding were conveniently and accurately summarised by the applicant as follows:

(a)    the Tribunal concluded that the Applicant’s offending was “very serious”, having regard to the vulnerability of its victims (“every member of our community who utilises and/or relies upon the banking or financial system”) and the sentences imposed upon him: CB519-521 [24]-[31]. The Tribunal further found that the cumulative effect of the Applicant’s offending “strongly militates in favour of a finding that the Applicant’s offending is very serious”: CB522-524 [36]-[39];

(b)    in considering “[t]he frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness”, the Tribunal found that the Applicant had “commenced offending in 2013 in Melbourne” – while noting that the reference to “Robbery” in his criminal history appeared to have been adjourned without conviction: CB522 [33]. The Tribunal concluded that “[o]n any reasonable view, a comparative analysis of his offending in Melbourne in 2013 and Sydney in 2014 and 2015 is clearly indicative of a significant escalation in the seriousness of the Applicant’s offending”: CB522 [33]. The Tribunal was satisfied that the Applicant’s offending was “demonstrative of a trend of increasing seriousness”: CB522 [35];

(c)    the Tribunal found that, if the Applicant were to reoffend in a similar manner, the risk that he would pose to a member of the general public would be very significant: CB524-526 [42]-[49];

(d)    in respect of the Applicant’s risk of future offending, the Tribunal found that there had not yet been any opportunity to gauge whether the imposition of a term in custody on the applicant had had any deterrent effect on any future propensity to offend: CB526 [50]. The Tribunal found the Applicant’s submissions as to why he would be of little or no risk to the Australian Community were “misconceived and irrelevant to any assessment of any future risk of reoffending” and revealed a lack of insight into his offending (CB527 [51]-[53], and that these factors were “plainly incorrect and misleading” (CB527 [54]). The Tribunal noted, in this regard, that it was not correct for the Applicant to say he had no criminal record before his convictions on 22 May 2017, given “the apparently unresolved nature of the “Robbery” offence that was “without conviction, adjourned to 12/09/2014””: CB528 [54]; and

(e)    the Tribunal found that it would be “unsafe for this Tribunal to make any finding other than there being a strong likelihood of [the Applicant] engaging in further criminal or other serious conduct were he to be released back into the community”, having regard to the nature and seriousness of his offending, the significant and lengthy custodial term imposed upon him, the fact that his past offending “fundamentally jeopardises an economic foundation of our community”, the Applicant’s lack of remorse and acknowledgement of wrongdoing, the fact his parental responsibilities had not previously prevented him from offending and “the absence of any independent and expert report about the factors in his psychological constitution giving rise to a propensity to offend” CB531 [65].

20    Furthermore, the Tribunal considered that:

(1)    the best interests of the applicant’s two infant children in Australia weighed in favour of revocation but did not outweigh Primary Consideration A (Tribunal reasons at [96]);

(2)    the expectations of the Australian community (Primary Consideration C) would endorse a finding of non-revocation and this weighed heavily in favour of non-revocation (Tribunal reasons at [119]); and

(3)    the strength, nature and duration of the applicant’s ties to Australia, together with the extent of impediments he would face if removed, weighed in favour of revocation of the mandatory cancellation (Tribunal reasons at [126] and [135]).

21    The Tribunal concluded that there was not another reason to revoke the cancellation of the applicant’s visa and that the Tribunal could not therefore revoke the cancellation. In reaching that decision, the Tribunal explained in summary that:

138.    In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

•    Primary Consideration A weighs heavily in favour of non-revocation;

•    Primary Consideration B weighs moderately in favour of revocation;

•    Primary Consideration C weighs heavily in favour of non-revocation;

•    I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

4.    CONSIDERATION

4.1    Ground 1: Alleged failure to take into account the Pre-Release Report

4.1.1    The context in which the issue arises

22    Ground 1 alleges that the Tribunal fell into jurisdictional error by failing to take into account a relevant consideration and pleads by way of particulars that:

In considering the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal was obliged to take into account available information and evidence on the risk of the applicant reoffending (paragraph 13.1.2(1) of Direction No. 65). Available information and evidence included a Pre-Release Report prepared by a Community Corrections Officer dated 7 June 2018 (CB251-258). The Tribunal failed to take that report, or relevant information contained within it, into account.

23    While ground 1 refers to “Direction 65”, it was not in issue that the relevant direction was Direction 79, as the Tribunal found at [12] of its reasons. Nor was it in issue that the Tribunal correctly found that it was bound to comply with Direction 79 by operation of s 499(2A) of the Act: see e.g. HSKJ at [41] (the Court).

24    Paragraph 13.1.2(1) of Direction 79 provides that:

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

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

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

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

25    In addressing the risk of re-offending before the Tribunal, the applicant relied among other things upon a Pre-Release Report dated 7 June 2018 and signed by a Community Corrections Officer at the Silverwater Parole Unit and the Unit Leader at the Silverwater Parole Unit (CB251). The Pre-Release Report was prepared for the purpose of assessing whether the applicant should be released on parole and was based upon interviews with the applicant, contact with the Department of Home Affairs, the Judge’s sentencing remarks, court depositions and police facts, and upon records held by Corrective Services NSW (CB251). While the particular qualifications and experience of the authors of the report to prepare it are not known, it is reasonable to infer, as the applicant submits, that the officers had sufficient experience and training to equip them to express the opinions contained in the report.

26    The applicant relied in particular upon the following passages in the Pre-Release Report (CB254-256):

During his period of incarceration, Mr Ali has not been subject to any internal infractions and CSNSW records lack a record of recent case notes relating to the offender’s behaviour, indicating the likelihood that the offender has caused minimal management concerns during his period of incarceration.

…

Offence-targeted programs

Due to the offender’s lack of crimin[o]genic needs and subsequent Low LSI-R, he was not deemed suitable for compendium programs. However, the offender will be required to re-engage with psychological services should he be supervised in the community as deemed appropriate by a supervising officer. Further, Mr Ali stated his intent to re-engage with mental health intervention should he be released to the community.

…

RISK OF RE-OFFENDING

Administration of instruments

Taking into account the above information and incorporating a standardised risk/needs instrument, the offender is suitable for a Low level of intervention by Corrective Services NSW, commensurate with the assessed risk and identified criminogenic needs.

…

ASSESSMENT AND RECOMMENDATIONS

Mr Ali presented as an offender who appeared to provide a lack of insight into his offending behaviours and initially displayed limited engagement with the interview process related to this report. However, at subsequent interview, Mr Ali presented as much more engaged, however appeared to fixate on his legal appeal and tended to relate all information back to this subject. Additionally, the offender could not provide any clear protective factors within the community including the family support, employment or accommodation should he be released to the community.

While the offender has provided minimal management concerns it is unclear how Mr Ali’s period of incarceration has impacted his attitude towards criminal enterprise, given his ongoing denial of the offences. However, in conjunction with the offender’s incarceration, it would appear that Mr Ali’s perceived shame, loss of his family, removal of parental support and cancellation of his Visa status may all provide a salutary effect on his future antisocial conventions. In this regard his Honour stated “He, I suspect, also represents good prospects of rehabilitation” JRS’S page 22.

(emphasis added)

4.1.2    The applicant’s submissions

27    Relying upon those passages italicised above, the applicant submitted that even though the authors of the report took into account the applicant’s continued denial of the offences, they nonetheless found that he had good prospects of rehabilitation.

28    It was common ground that there was no reference to the Pre-Release Report in the Tribunal’s reasons. As such the applicant contended that there were two possible inferences: either the report was overlooked; or the Tribunal had regard to it (Minister for Home Affairs v Ogawa [2019] FCAFC 98; 369 ALR 553 (Ogawa) at [108] (Davies, Rangiah and Steward JJ)).  

29    The applicant submitted that the Court should infer that the Pre-Release Report had been overlooked. First, in the applicant’s submission the Pre-Release Report was independent and “involves a level of expertise”. As to the latter, the applicant’s counsel submitted that:

We’re dealing with apparently government employees whose job it is to assess prospects of rehabilitation and future criminal conduct. They’ve applied what appears to be some sort of objective assessment. This is the LSI-R. And in the process of doing so they’ve identified and considered criminogenic needs and, in particular, assessed how that operates in respect of this particular applicant.

30    That being so, the applicant submitted that the inference that the Tribunal overlooked the report should be drawn where the Tribunal expressly relied upon a supposed “absence of any independent and expert report” at [64] of its reasons in finding that it would unsafe for the Tribunal to make any finding other than that there was a strong likelihood that the applicant would reoffend if released into the community.

31    Secondly the applicant submitted that the material was of sufficient importance to the exercise of the Tribunal’s function that it was required to consider the Pre-Release Report. In this regard, the applicant emphasised the significance of the Pre-Release Report to his case for revocation of the mandatory cancellation in the Tribunal, pointing to an obligation upon the Tribunal to consider the risk of re-offending under Direction 79 and the reliance placed by the applicant upon the report in cross examination, in oral closing submissions, and in his Response to the Respondent Facts, Contentions and Issues Statement (exhibit R1) in the context of addressing that risk. Moreover, the applicant submitted that the Pre-Release Report was cogent, given that the opinions expressed were those of independent experts, and relevant to the question of risk. In this regard, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) (upon which the applicant relied), Robertson J held that:

111. In my opinion there is no clear distinction in each case between claims and evidence … The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. …

112. As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend upon the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.

32    As Robertson J further explained at [113], “if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.”

33    In these circumstances, the applicant submitted that the Court should infer that if the Tribunal had in fact had regard to the Pre-Release Report, it would have referred to the report in its written reasons and that the failure to do so amounted to a jurisdictional error.

4.1.3    Relevant principles

34    First, the question of what inferences should be drawn from the written reasons of the Tribunal must take account of the statutory context within which the reasons are produced. The source of the obligation to provide reasons is s 430(1) of the Act which is in the following terms:

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)     sets out the decision of the Tribunal on the review; and

(b)     sets out the reasons for the decision; and

(c)     sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based …

35    As Gleeson CJ explained in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf):

5.     When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material.

(emphasis added; see also Yusuf at [69] (McHugh, Gummow and Hayne JJ))

36    Conversely as Gleeson CJ also held at [10], “[b]y setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review.”

37    Secondly, the inference that the Tribunal has not mentioned a matter because it did not regard it as material may be displaced by other considerations. As Perram J explained in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 (SZTMD) (in a passage approved by the Full Court in HSKJ at [44]):

19. The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.

20    Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court. In any event, even if that was not so, the applicant made no attempt to point to any aspect of the guidelines or country information which he said were relevant and should, therefore, have been taken into account.

See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] (the Court).

38    It follows, as the five member Full Court held in Ogawa that:

103. There is a distinction between the making of a decision by the Minister and the written notice given under s 501G(1) of the Act setting out his or her reasons… The distinction is that the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker: He at [79]. It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47]. It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:

76    The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that [has] not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

(citations omitted)

4.1.4    Ground 1 is not established

39    In my view, ground 1 has not been established. As the Minister submitted, it is at least open to infer that the report was not overlooked by the Tribunal but rather that the Tribunal did not consider that the report was material given the following matters. Indeed, I consider that that inference is compelling in the circumstances of this case.

40    First, as the applicant submits, the Tribunal was required to engage in an active intellectual process directed at the representations and material provided by him pursuant to an invitation under s 501CA(3)(b): Ogawa at [101]-[102] (the Court). However, as is clear from the principles explained above, it does not necessarily follow from the absence of an express reference to the Pre-Release Report that the Tribunal failed to do so.

41    Secondly, given the prominence of the report in the applicant’s cross-examination and submissions and the fact that the Tribunal hearing preceded the delivery of reasons by just over a week, it highly improbable that the Tribunal was unaware of the Pre-Release Report: see by analogy SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [31]-[32] (the Court)).

42    Thirdly, the Pre-Release Report addressed the question of risk within a very different statutory context from that within which risk falls to be considered under s 501(3A) of the Act. For example, the release of a prisoner on parole will be subject to conditions and ongoing supervision. Furthermore a breach of the terms of parole will result in the prisoner being required to serve the remainder of her or his sentence of imprisonment physically in prison. On the other hand, the effect of revoking the cancellation decision would be to re-enliven the visa and to deem the visa never to have been cancelled. As a result the applicant would have permission to enter and remain in Australia and there would no longer be any obligation or power to keep him in immigration detention. The kind of supervision and conditions which might attend the grant of parole and impact on the assessment of risk do not apply.

43    Fourthly, as the Minister emphasised, the Pre-Release Report concerned an assessment of the extent to which intervention would be required by Corrective Services NSW based upon the assessed risk and identified criminogenic needs, incorporating a standardised risk/needs instrument. The reference to criminogenic needs was a reference to the needs identified in the Pre-Release Report namely, financial, companions and attitude/orientation (CB260). However the Tribunal at [63] and [64] referred to a lack of independent expert opinion “about the causative factors behind his offending and, assuming they were identified or diagnosed, whether such factors were the subject of remedial treatment and management” and “an independent and expert report about the factors in a psychological constitution giving rise to a propensity to offend”. It was, in other words, matters of that nature which the Tribunal considered would assist it in assessing the risk that the applicant might pose to the community in undertaking its task under the Act. None of those matters were addressed in the Pre-Release Report and there was no indication that either of the officers who signed off on the Pre-Release Report had relevant expertise to address them.

44    Finally, I note that, despite the applicant’s claims to have been innocent and to have an appeal on foot, the applicant did not contend that the Tribunal wrongly proceeded on the correctness of the applicant’s convictions in this proceeding; nor did the applicant allege that he has or had an appeal on foot against his convictions such that the Tribunal should have awaited the outcome of that process. The applicant was also cross-examined at the Tribunal hearing extensively about his claims to have an appeal on foot against his conviction and the credibility of his claims in this regard were clearly put in issue (Tribunal transcript at pp. 19-22). As such, I agree with the Minister’s submission that the Court is entitled to proceed on the basis that the Tribunal correctly considered that the applicant’s claims to have an appeal on foot were “less than credible” (Tribunal reasons at [99]). Thus, as the Minister also submitted, the Tribunal had before it an applicant convicted of serious dishonesty offences who, in its view, was continuing a dishonest denial of his offending and lacked insight into his offending.

45    It follows therefore that the applicant has not displaced the inference that the Pre-release Report was not mentioned in the Tribunal’s reasons because the Tribunal did not consider it to be material and was therefore under no obligation to refer to it. This is not a case where, for example, the evidence relied upon was “so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it” (SZTMD at [19]).

4.2    Grounds 2 and 3: Alleged errors relating to the Tribunal’s reliance upon the breach of bail for which no conviction was recorded

46    It is not in issue that the Tribunal was required to take into account the primary considerations in Part C of Direction 79 and that these, as I have earlier explained, included “the nature and seriousness of the non-citizen’s conduct to date” and “the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness” (CB469-470). Nor was it in issue that the making of a significant finding in the absence of evidence can amount to jurisdictional error: SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133 at [7]-[10] (Tamberlin J); Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5]-[13] (Wilcox, French and Finkelstein JJ); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [18]-[30] (Mansfield, Selway and Bennett JJ).

47    The applicant contended that in discharging that obligation, the Tribunal was required to correctly construe the “nature and seriousness of the non-citizen’s conduct to date” relying upon the decisions in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 and SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909.

48    The applicant submitted that:

22.    In the present case, the position established by the National Police Certificate (CB28-29) and the Applicant’s Victoria Police Criminal History Report (CB166) was as follows:

(a)    on 14 March 2013, the Applicant was fined $500 with no conviction recorded by the Melbourne Magistrates Court for a failure to answer bail in connection with a robbery offence (CB28);

(b)    on 14 March 2013, the Melbourne Magistrates Court adjourned a robbery charge without conviction to 12 September 2014 (CB28). It was subsequently dismissed (CB166); and

(c)    on 22 May 2017, the Applicant was sentenced by the NSW District Court in connection with the identity offences in 2014-2015 that led to his imprisonment (CB28).

23.    The Tribunal, however, first, wrongly proceeded on the basis that the Applicant had been convicted in 2013 when in fact he was not convicted. At CB522 [35], for example, the Tribunal referred to the Applicant’s conduct as (emphasis added) “involving an initial conviction for breaching his bail followed by his dealing with identity information to commit indictable offences.” As noted above, the National Police Certificate plainly records that the Applicant was not convicted for this offence; it does not provide any basis on which it could have [been] found that the Applicant had been convicted in 2013 for this or any other offence. In the circumstances, the Tribunal engaged in jurisdictional error by:

(a)    failing to take into account a relevant consideration (namely, the fact of no conviction recorded in the National Police Certificate);

(b)    making a significant finding in the absence of evidence (there was no evidence to support its finding that the Applicant had been convicted for breaching bail); and or alternatively,

(c)    misconstruing and, therefore, constructively failing to take into account, the nature and seriousness of the Applicant’s conduct (being a mandatory consideration).    

(original emphasis)

49    The passages in the Tribunal’s reasons said to demonstrate the errors identified in grounds 2 and 3 are as follows:

32.    Subparagraph (e) of the paragraph 13.1.1(1) of the Direction concerns itself with the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.

33.    The Applicant arrived in this country in 2008 and commenced offending in 2013 in Melbourne. As mentioned earlier, the reference to “Robbery” in his criminal history appears to have been adjourned “Without conviction”. He committed the identity fraud offences in Sydney between 17 December 2014 and 10 February 2015. On any reasonable view, a comparative analysis of his offending in Melbourne in 2013 and Sydney in 2014 and 2015, is clearly indicative of a significant escalation in the seriousness of the Applicant’s offending.

34.    In terms of the frequency of his offending, one ought have regard to the remarks of Judge Toner SC, who observed that “These offences were committed between 17 December 2014 and 10 February 2015, which is about two months but clearly the activities of this offender and those who were in effect “employed” by him was intense.”

35.    I am satisfied that the Applicant’s offending is demonstrative of a trend of increasing seriousness. I am further satisfied of the frequency or intensity evident in his conduct involving an initial conviction for breaching his bail followed by his dealing with identity information to commit indictable offences. Subparagraph (d) of paragraph 13.1.1(1) of the Direction thus strongly militates in favour of a finding that the Applicant’s offending conduct is very serious.

(emphasis added)

50    Grounds 2 and 3 are also not established for the following reasons.

51    First, while at [35] the Tribunal referred to a “conviction” for breaching bail, it is clear that the Tribunal was well aware that no conviction was recorded for this offence, as it expressly recognised at the outset of its reasons at [4]. Nonetheless, it is clear that the offence was found to have been proved because, as the Tribunal also found at [4], the Melbourne Magistrates Court imposed a fine of $500 for the offence. The applicant also admitted the commission of the offence under cross-examination before the Tribunal (Tribunal transcript at pp. 14-15). In this regard, while I note that Toner J found that the applicant had no criminal record (CB58), that was in the context of delivering sentencing remarks. That finding is irrelevant in light of the evidence before the Tribunal as to the commission of the earlier offence in the context of determining whether to revoke the mandatory visa cancellation decision under the Act.

52    In these circumstances, the reference at [35] of the Tribunal’s reasons to the applicant’s “conviction” for breaching bail is fairly read as no more than a loose way of describing the outcome of the criminal prosecution. In this regard, it is well established that “a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker” and therefore, the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (quoting with approval the approach adopted in Collector of Customs v Pozzolanic [1993] FCA 322; (1993) 43 FCR 280 at 287).

53    Secondly, in these circumstances no error is revealed in the Tribunal’s rejection at [54] of the applicant’s submission that he had no criminal record before the 11 convictions of identity fraud on the basis that the submission was “plainly incorrect and misleading”. To the contrary, the National Police Certificate in evidence before the Tribunal cited the Victoria Police Criminal History Report as recording “MELBOURNE MAGISTRATES COURT 14/03/2013 FAIL TO ANSWER BAIL Without conviction, fined $500.00” (CB166).

54    Thirdly, no jurisdictional error is apparent in the Tribunal’s incorrect finding that the robbery charge against the applicant was unresolved (at [54]) despite the National Police Certificate recording that the charge was “Dismissed COMPLIANCE WITH BOND/UNDERTAKING” on 12 September 2014 (CB166). It is apparent that the Tribunal overlooked this notation, and took account only of the earlier notation on 14 March 2013 that the robbery charge had been adjourned to 12 September 2014 without conviction. The short point is that the Tribunal’s error was not material because the Tribunal did not take that erroneous finding into account but merely noted it: Hossain v Minister for Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [31]; Minister for Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. Further, the notation on the National Police Certificate effectively means that, while it was accepted that the applicant had committed the offence, no conviction was entered upon his complying with the undertaking. As such, even if the Tribunal had correctly read the National Police Certificate, it could not have assisted the applicant’s case before the Tribunal and led to any different decision. It follows that the error made by the Tribunal was not material for this reason also.

55    Fourthly, it might be thought somewhat inapt to find at [35] that the applicant’s offending demonstrated a “trend of increasing seriousness” when the Tribunal found that there was only one prior offence. However, that does not establish a jurisdictional error. Rather, as the Minister submitted, the important point is that these were integers taken into account by the Tribunal in assessing the seriousness of the applicant’s offending conduct. In this regard, objectively speaking there could be no doubt but that the applicant’s conduct in the last 11 offences was “very serious” as the Tribunal found at [35]. Equally, there can be no doubt that the 11 offences were objectively more serious than the earlier offence of breaching bail and therefore that the seriousness of the applicant’s offending had escalated.

4.3    Ground 4: Procedural fairness

56    Finally, the applicant submits that the Tribunal failed to give the applicant notice of findings it proposed to make and to afford him an opportunity to respond contrary to the natural justice hearing rule. The findings in question relied upon by the applicant are that:

(1)    a comparative analysis of his offending in 2013 and that in 2014-2015 was “clearly indicative of a significant escalation in the seriousness of the Applicant’s offending” and of “a trend of increasing seriousness” (Tribunal’s reasons at [33] and [35] respectively);

(2)    there had been no opportunity to gauge whether the applicant's term of imprisonment had had any deterrent effect or to test his rehabilitation in the broader community (Tribunal reasons at [50]);

(3)    the applicant’s submissions as to the risk that he would re-offend if released were “plainly incorrect and misleading” (Tribunal reasons at [54]); and

(4)    the absence of any independent and expert report about the factors in his psychological constitution giving rise to a propensity to offend was material to the Tribunal’s conclusion that there was a likelihood he would re-offend if released back into the community (Tribunal reasons at [64]).

(Applicant’s outline at [29])

57    The applicant correctly accepts that the Tribunal is not required to disclose each step in its prospective reasoning process: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). It is also correct to say that the Tribunal is required to put an applicant on notice of critical issues on review in circumstances where the issues were not considered dispositive by the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]-[36] (the Court); see also Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 590-591 (the Court). As the Full Court recently held in Minister for Home Affairs v Smith [2019] FCAFC 137 at [17] (quoting the primary judge with approval):

69    It is well settled that a decision-maker is not required to give a running commentary or “expose his or her mental processes or provisional views” ([Alphaone] at 592). A decision-maker is, however, required to identify for the person affected “any critical issue not apparent from the nature of the decision or the terms of the statutory power” and advise of any adverse conclusions “which would not obviously be open on the known material” (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J).

58    However, no breach of the natural justice hearing rule has been established by the applicant in this case.

59    With respect to the first finding complained of by the applicant, the short point is that the finding was not material to the Tribunal’s decision for the reasons already given at [55] above. The applicant was also cross-examined on the seriousness of his offending in 2013/2014 and on the breach of bail offence (Tribunal transcript at pp. 14-15 and 16-17).

60    With respect to the second finding, the finding was obviously open on the known material; indeed it was an unassailable fact.

61    As to the third finding, the finding was that several of the factors relied on by the applicant to say that he was of little or no risk to the Australian community, including relevantly that he had no criminal record before the 11 convictions, were “plainly incorrect and misleading” (Tribunal reasons at [54]). There is no procedural unfairness in the Tribunal making this finding in circumstances where the applicant had been cross-examined specifically on his prior offending by the Minister (Tribunal transcript at pp. 14-15).

62    With respect to the fourth finding relied upon, it is for an applicant to raise and persuade the Tribunal of her or his claims. Thus the Tribunal is required to consider only those claims made by an applicant which are expressly raised by an applicant or arise squarely on the material before it (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 at [24] (Gummow and Callinan JJ); NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] (Black CJ, French and Selway JJ))  and is required to make its own inquiries only in very limited circumstances (Gupta v Minister for Immigration and Border Protection [2016] FCA 1004). Equally it was not incumbent upon the Tribunal to advise the applicant as to gaps or deficiencies in his evidence such as the absence of an independent expert report addressing factors relevant to the risk of harm which he potentially posed to the Australian community. To do so would be require the Tribunal to give an applicant a running commentary on its evaluation of the applicant’s case contrary to SZBYR.

63    Furthermore, each finding challenged by ground 4 was taken into account by the Tribunal in reaching its conclusion that with respect to Primary Consideration A the applicant’s offending could readily be characterised as “very serious” and that there was a strong likelihood of him re-offending with potentially more serious and catastrophic consequences for the Australian community. These were not new issues. To the contrary, in common with the Tribunal, the delegate found that there was “a serious ongoing risk that Mr ALI will reoffend” and that should he do so in a similar manner, “it could result in financial harm to members of the Australian community” (Delegate’s reasons at [30]). The fact that the Tribunal reached that conclusion having regard to the additional findings complained of by the applicant does not necessarily mean that there was a denial of procedural fairness.

64    Finally, as the Full Court held in Alphaone at 591, “[w]ithin the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case”. In the present case, each of the findings challenged by ground 4 are in the nature of an evaluation of the applicant’s case and were obviously open on the known material. As the Minister submits, therefore, ground 4 ultimately goes no higher than to complain of a failure by the Tribunal to inform the applicant of its mental thought processes contrary to established principle.

5.    CONCLUSION

65    For those reasons, the application must be dismissed with costs.

Associate:

Dated:    24 April 2020