FEDERAL COURT OF AUSTRALIA

Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicant challenges the validity of a decision made by the second respondent, the Administrative Appeals Tribunal to affirm the decision of a delegate of the first respondent (the Minister) to refuse to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth).

2    The Tribunal heard the applicant’s application on 6 January 2020 and affirmed the delegate’s decision on 16 January 2020.

THE STATUTORY FRAMEWORK

3    Relevantly in this case, pursuant to ss 501(3A), 501(6)(a), 501(6)(e) and 501(7)(c), the Minister must cancel a visa that has been granted to a person (a non-citizen) if the Minister is satisfied that the person:

(a)    Does not pass the character test because they have:

(i)    been sentenced to a term of imprisonment of more than 12 months; or

(ii)    been convicted of a sexually based offence 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 the law of a State.

4    However, the Minister may revoke a decision made under s 501(3A) if, relevantly, the Minister is satisfied ‘that there is another reason why the original decision should be revoked’: s 501CA(4)(b)(ii) of the Act. A person may apply to the Tribunal for a review of a non-revocation decision under s 501CA(4): s 500(1)(ba).

THE TRIBUNAL’S DECISION

5    The main issues before the Tribunal for determination were, first, whether the applicant passed the character test and, secondly, if he did not pass that test, whether there was ‘another reason why the original decision should be revoked’. The applicant did not contend before the Tribunal, and does not in this Court contend, that he passes the character test.

6    In the process of deciding whether there was ‘another reason’ to revoke the cancellation of the applicant’s visa, the Tribunal was required to take into account the considerations where relevant contained in Pt C of Direction No 79: s 499 of the Act. Direction No 79 lists three primary considerations (at cl 13(2)) that the decision-makers must take into account:

(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.

7    The Tribunal took into account the first primary consideration, namely, the protection of the Australian community in a lengthy examination between [39]-[108] of its decision. It is helpful to examine the decision in some detail in light of the discussion below in relation to materiality.

8    In taking into account the first primary consideration the Tribunal is required to have regard to the:

(a)    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.

(Emphasis added.)

9    This is prescribed by cl 13.1(2) of Direction No 79.

10    The Tribunal commenced its consideration of the nature and seriousness of the applicant’s conduct to date (at [41]) setting out both his juvenile and adult offending. The latter of which consisted of 34 criminal and driving offences over 12 years including separate terms of imprisonment for 15 months and 18 months for robbery offences. The most recent offending consisted of three counts of child sex offences for which the applicant was sentenced to four years imprisonment. As noted by the Tribunal (at [44]), the child sex offences were the basis for the cancellation of the applicant’s visa.

11    There is little doubt that the applicant’s offending is serious with reference to cl 13.1.1(1) of Direction No 79 (set out at [41] of the Tribunal’s reasons). At [44]-[65], the Tribunal conducted a detailed analysis of the findings of the sentencing judges for both the robbery and child sex offences and noted that the applicant had received a written warning on 8 December 2004, after which the applicant went on to commit approximately 30 offences including the child sex offences. At [67], the Tribunal concluded as follows:

In summary, the Applicant’s offences include offences involving violence, although his violent offences were committed some time ago, and persistent driving related offending. In the Tribunal’s opinion, these violent offences are serious because they involved harm to innocent members of the public. The Applicant’s offending has culminated in the Child Sex Offences against a minor who is a vulnerable member of the community. These Child Sexual Offences in particular are very serious. The overall seriousness of the Applicant’s offending is also reflected in the sentences imposed by the courts, the frequency and trend of increasing seriousness of his offending, and his reoffending subsequent to receiving a formal warning, and with the knowledge that he could face deportation. On balance, the Tribunal finds that the Applicant’s offending, particularly his most recent convictions for the Child Sex Offences, is very serious and strongly weighs against the revocation of the cancellation of his Visa.

12    The Tribunal then turned to a consideration of the likelihood of the applicant reoffending by reference to cl 13.1.2(1) of Direction No 79 and found (at [108]) that the applicant’s criminal history and prior disregard for court orders suggested a likelihood of future offending. More specifically, it concluded that the risk of ‘general reoffending’ was likely to be moderate to high, and the risk of sexual reoffending was moderate to low.

13    In reaching these conclusions, the Tribunal had particular regard to the findings of the sentencing judge for the child sex offences which were pessimistic about the applicant’s prospects of rehabilitation and the fact that the applicant had previously had an opportunity to participate in rehabilitation courses which had failed to prevent him offending.

14    The Tribunal then referred back (at [76]) to the applicant’s lengthy criminal history commencing as a juvenile, giving most weight to the 34 criminal and driving offences committed as an adult.. When sentencing the applicant for the child sexual offences, the sentencing judge stated:

Your criminal history provides some insight and discloses that you have a persistent disregard and defiance of the law. It’s a lengthy criminal history and it’s not an aggravating feature for these offences, but it does demonstrate you’re not entitled to any leniency for good character.

15    The Tribunal agreed with his Honour’s comments and observed that the frequency and number of the applicant’s offences tended to suggest a disregard for Australian laws and lawful authority and a likelihood of future offending. So too did the applicant’s lack of compliance with court imposed orders (including breach of a police order in 2008, and breaches of bail in 2008, 2012 and 2016). It said that ‘… in 2015 the Applicant was subject to a Community Based Order when he committed one of the Child Sex Offences’ (at [77]). Additionally, the Tribunal noted again the fact that the applicant continued to offend after receiving a written warning from the Department and an oral warning from the sentencing judge, as well as having witnessed his two brothers being deported on similar character grounds. Further, in a Treatment Assessment Report created on 29 March 2017, the applicant was assessed as being ‘a “very high” risk of committing further general offending’.

16    The Tribunal noted (at [78]) that when sentencing the applicant on 20 January 2017 for the child sex offences, the sentencing judge referred to the applicant’s Pre-Sentence Report dated 2 October 2016 which assessed the applicant as being ‘a moderate to high risk of reoffending in a sexual manner’. The Pre-Sentence Report also stated that:

Based on his results, [the applicant] fell within a category of offenders who sexually reoffended at a rate of 11% within a five year period. When using a 95% confidence interval, offenders who scored in a like manner to [the applicant] reoffended sexually at a rate of between 10% and 12.1% within a five year period.

17    It was noted (at [82]) that the sentencing judge accepted the contents of these reports, noting that the applicant was ‘a moderate to high risk of reoffending in a sexual manner’. The sentencing judge had also queried the applicant’s expression of remorse, stating that, ‘the lateness of the plea is such that it does not indicate any remorse, but a late recognition of the strong case against you’.

18    However, on a positive note, the Tribunal recorded (at [83]) that between 30 March 2009 and 27 July 2009, the applicant undertook the ‘Change and Emotions Program’, attending 12 out of the 15 sessions. In a Treatment Completion Report dated 11 August 2009, program facilitators reported that he made treatment gains in this program such as ‘having insight [into] the nature and function of emotions and the link to his offending’, including his use of alcohol and illicit substances as coping mechanisms. The Report stated that the applicant:

impressed as having gained in terms of increasing his insight into ways to manage emotions in a prosocial manner which may assist him to maintain and build on the positive aspects he currently reports, and to avoid lapse/relapse to offending behaviour.

19    The Report continued on to state the opinion that the applicant did not have any further treatment needs at that time. It was of concern to the Tribunal however, that despite being assessed as having made reported gains and as not having any further treatment needs, the applicant went on to commit numerous additional offences including the child sex offences and to continue his alcohol and drug use.

20    The Tribunal also noted to the applicant’s credit, he completed the Intensive Sex Offender Treatment Program (the ISOTP) at Bunbury Regional Prison between 5 February 2018 and 11 September 2018 with reported treatment gains. Prior to his completion of the program, the Program Completion Report rated the applicant’s risk of reoffending in a sexual manner using three different treatment tools.

21    The Tribunal observed (at [87]) that unfortunately, the program facilitators did not provide any assessment as to whether, and to what extent, the likelihood of the applicant reoffending had been reduced as a result of the treatment gains he achieved during the program.

22    The applicant had acknowledged, when giving evidence at the Tribunal hearing, a relationship between his consumption of illicit substances and his offending. When sentencing the applicant for the child sexual offences, the sentencing judge also referred to the applicant’s drug use, stating that: ‘I accept that you obviously took and used illicit drugs from time to time’. The Tribunal accepted that addressing his drug use issues would be a factor in reducing the likelihood of his reoffending.

23    The applicant completed the Pathways Program between 5 November 2018 and 6 February 2019 at Karnet Prison Farm. Similarly to the ISOTP, although the applicant was reported to have made treatment gains, the program facilitators did not provide any assessment as to the likelihood of the applicant’s reoffending being reduced, and to what extent, as a result of the treatment gains he achieved during the program.

24    A letter from Acacia Prison dated 29 June 2017 also confirmed that the applicant had attended 14 Narcotics Anonymous meetings whilst at Acacia Prison. The Tribunal noted that this attendance was also to the applicant’s credit, particularly in light of attendance being on a voluntary basis. The applicant also stated in his evidence at the hearing that he had undertaken drug and alcohol counselling in prison for two weeks.

25    The Tribunal noted (at [94]) that in his evidence at the hearing, the applicant was able to describe some of the gains he made as a result of completing these programs.

26    Also to the applicant’s credit, the Tribunal noted that the applicant had not engaged in any drug use whilst in prison or immigration detention. This was illustrated by his frequent tests for alcohol and drugs by Corrective Services while he was in prison, which were all negative. Thus, if the applicant were released into the Australian community, he will be starting from the position of being abstinent from drug and alcohol use. This, it was thought, may assist him to continue to abstain from drug use in the community and thereby reduce the likelihood of his reoffending.

27    It was also observed that on 28 March 2019, the Western Australian Prisoners’ Review Board made a parole order to release the applicant on parole to commence from his earliest eligibility date of 25 April 2019 with conditions. The conditions of the applicant’s parole order included not to consume alcohol or to enter licensed premises, to submit to random breath testing as required by police, to attend random urinalysis for illicit substances as directed by the community corrections officer, to attend programs and counselling as directed, to comply with reporting requirements under the Community Protection (Offender Reporting) Act 2004 (WA), and to immediately engage in employment, training or job seeking. As set out at [96] of the Tribunal’s decision, the reasons given for granting parole to the applicant were as follows:

a.    The fact that the conditions of parole will further reduce the risk to the safety of the community;

b.    The salutary impact of a term of imprisonment and an opportunity for parole supervision;

  c.    the applicant successfully completed a period of parole in 2004;

d.    the fact that the applicant’s parole plan includes confirmed suitable accommodation and family support;

e.    the applicant’s participation in voluntary programs, which demonstrates a motivation and willingness to address offending behaviour.

f.    the applicant’s successful completion of the Intensive Sex Offender Treatment Program and Pathways Program with reported gains.

28    The applicant, through counsel, submitted to the Tribunal that if the applicant were released into the Australian community, he would be a reportable sex offender for 15 years. He will therefore be subject to monitoring by way of reporting requirements and conditions which may assist to reduce his likelihood of reoffending. Additionally, if released into the Australian community, the applicant will be subject to a period of parole until 25 April 2021, also with monitoring and conditions (referred to above) which may also reduce the likelihood of his reoffending and assist in his rehabilitation and reintegration into the community. The Tribunal agreed (at [98]) that this period of parole in particular may act as a further protective factor, which, as the duration of parole progresses, may further reduce the applicant’s risk of reoffending.

29    It was noted that at the Tribunal hearing, the applicant expressed that he understood that if he reoffended, he would again face visa cancellation which would be a further deterrent to his reoffending. The Tribunal agreed that the applicant’s supervision in the community, together with his fear of having his visa cancelled in the future, may act as deterrent factors which may reduce the likelihood of the applicant reoffending. His most recent sentence of imprisonment may have had a salient effect on the applicant, and the Tribunal noted (at [99]) that, with the exception of three minor incidents, the applicant’s prison attitude and behaviour was reported to be respectful and compliant, as well as the applicant being an above average worker. This good behaviour was treated by the Tribunal as being to the applicant’s credit, and may also be indicative of this salient effect.

30    It was noted that the applicant attended the voluntary Life Skills Re-entry Program facilitated by Outcare which he completed in December 2017, with the attendance certificate for the ‘Prepare to change’ session reporting that he ‘actively participated in the program’. He completed vocational training in prison including a Career Development Workshop facilitated by Outcare on 11 September 2017 , as well as obtaining competencies towards a ‘Certificate 1 in Entry to General Education’ and a ‘Certificate 1 in General Education for Adults’. The applicant mentioned in his evidence at the hearing before the Tribunal that he had undertaken some studies in computing. The applicant also expressed a desire to continue with his studies to complete year 12 should he have the opportunity of being released into the community. He was confident that, given his work experience and work tickets, he would not have difficulty obtaining paid employment if he were released into the Australian community. It was commendable the Tribunal said (at [100]), that:

the Applicant ha[d] undertaken vocational training in prison, together with his work experience. This may assist his rehabilitation and reintegration should he be released back into the Australian community. His further study and potential employment are prosocial factors which may assist to reduce his likelihood of reoffending.

31    In addition, it was noted that the applicant has support from prosocial family in the community including his father (who has offered that the applicant can live with him), and his sister. The Tribunal also noted (at [101]) the applicant’s intention to be a part of his nieces’ and nephew’s lives (the children of his sister) which may be a protective factor in helping the applicant to abstain from drug use and to reduce the likelihood of his reoffending.

32    All of these factors were treated by the Tribunal as being in favour of the applicant’s position in relation to the ‘risk to the Australian community’. They are outlined in more detail than might be usual in a judgment on an application of this nature because of the nature of the arguments raised, particularly in relation to materiality.

The Tribunal’s concern as to the applicant’s remorse

33    In a passage which is the primary focus in this application for review, the Tribunal then turned to consider the issue of the applicant’s remorse, specifically observing (at [102]-[105]):

102.    The Applicant has expressed some remorse for his offending and the impact that his sexual offending (the Child Sex Offences) had on the victim ... Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. The Tribunal was, however, concerned that the Applicant attempted to minimise some of the circumstances surrounding the offending. For example, the Sentencing Judge stated that the Applicant infected the victim with chlamydia, which His Honour referred to as an “aggravating feature” of the offending ... However, the Applicant gave evasive evidence about whether he infected the 14-year-old victim of his sexual offending with chlamydia, or whether she had given him the infection. In summary, his evidence was that it may have been the victim who infected him with the sexually transmitted disease, but that he was taking responsibility because he was the adult who should have known better ... The Tribunal finds this explanation to be implausible, especially in light of the victim having just turned 14-years-old at the time the offending commenced.

103.    The Sentencing Judge also stated that …:

… whilst … you’ve been convicted of three offences, they are quite properly said to be just representative of sexual conduct that occurred throughout the entire period and there were other sexual acts. But these are the three that the State rely on for the purpose of sentencing you, but they’re sexual acts that are in the context of a series of sexual acts and sexual conduct over a period of time.

104.    However, when asked by [counsel for the Minister] about the number of times he had sexual relations with the victim, the Applicant stated that it was only on the three occasions that he was convicted ... The Tribunal subsequently asked the Applicant to clarify this evidence in light of the above comments from the Sentencing Judge. As indicated in the following exchange, the Applicant continued to maintain that he only had a sexual relations [sic] with the complainant on the three occasions for which he was convicted (the Child Sex Offences) (transcript, pages 53-54):

SENIOR MEMBER:    … I just wanted to clarify the evidence that you gave earlier about your - you were saying that you were having a relationship with a - with a 14-year-old girl. How many times did you have sex with her?

    APPLICANT:        Three, I think.

SENIOR MEMBER:    So just the three occasions. That was your - - -?

    APPLICANT:        Yes, because I wasn’t always around there.

SENIOR MEMBER:    That was your evidence. Okay. And are you sure about that?

    APPLICANT:        Positive.

SENIOR MEMBER:    Because that’s different from what the sentencing judge said?

    APPLICANT:        Yes. No, it was three.

    SENIOR MEMBER:    So you’re saying it was three?

    APPLICANT:        Yes, that’s correct.

SENIOR MEMBER:    Okay. That’s okay. Because I’m just looking at G10, page 53 - one, two, three - four paragraphs down. The judge is saying that whilst you have been convicted of three offences, they are quite properly said to be just representative of sexual conduct that occurred throughout the entire period and there were other sexual acts, but these are the three that the State rely on for the purpose of sentencing you, but they’re sexual acts that are in the context of a series of sexual acts and sexual conduct over a period of time. So it seems to me that the judge is saying that there were more than the three occasions?

APPLICANT:    No. There was only three occasions. Yes.

105.    Given the clear statement to the contrary by the Sentencing Judge, the Tribunal also regards the Applicant’s evidence that he only had sex with the victim on the three occasions he was convicted of to be implausible. This evidence appears to be an attempt by the Applicant to revise some of the circumstances of the offending in order to present himself more positively to the Tribunal. This raises concerns about the Applicant’s remorse and insight into his offending.

(Emphasis added.)

34    As can be seen, the Tribunal found that the applicant’s evidence was contrary to the findings of the sentencing judge with respect to two particular topics. It then expressed concern about the applicant’s remorse and the degree of insight into his offending. It then concluded (at [107]-[108]) that the applicant represented an unacceptable risk of reoffending and that the first primary consideration weighed strongly against revocation.

35    The Tribunal also took into account the second primary consideration, the best interests of minor children in Australia (at [109]-[121]). It found that the interests of the applicant’s nieces and nephew weighed slightly in favour of revocation.

36    Importantly, in the context of the present application, it then considered the third primary consideration, being the expectations of the Australian community, finding that this consideration weighed strongly against revocation (at [122]-[135]). It then went on to consider other relevant factors including the strength, nature and duration of ties to Australia, finding that this weighed strongly in favour of revocation (at [149]) and considered the extent of impediments if removed from Australia, finding that this weighed moderately in favour of revocation (at [164]).

37    Ultimately after weighing all these factors, the Tribunal said (at [172]):

In summary, after considering all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal finds that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct or preferable decision is to affirm the Reviewable Decision.

GROUND OF APPLICATION

38    Having abandoned a second proposed ground, the applicant’s sole ground of review is that the Tribunal made a jurisdictional error by making adverse findings of the applicant’s remorse and insight into his offending based on evidence given by the applicant which was contrary to the findings made by the sentencing judge. The particulars were:

(a)    the findings appear at [102]-[105] of the Tribunal’s reasons [which are set out above at [33]];

(b)    the Tribunal was not permitted to assess the truth or falsity of the applicant’s evidence if it was contrary to the findings made by the sentencing judge; and

(c)    the findings were material to the Tribunal’s assessment of the applicant’s likelihood of reoffending and the evaluation of the first primary consideration.

(Emphasis added.)

THE APPLICANT’S ARGUMENTS

39    The applicant’s arguments are based on the decision in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, where the Full Court (McKerracher and Colvin JJ, Derrington J dissenting) held by majority that an administrative decision-maker in deciding whether there is ‘another reason’ to revoke the cancellation of a non-citizen’s visa is not entitled to make factual findings about the circumstances of an offence or offences inconsistent with those made by a judge in sentencing the non-citizen for that offence or those offences. As a necessary result of this, evidence given by a non-citizen which is contrary to those factual findings cannot be accepted by an administrative decision-maker to establish a contrary fact.

40    In HZCP, the applicant had attacked two men in the company of three co-offenders and was found by the sentencing judge to have struck the victims with a metal bar. Before the Tribunal, the applicant had indicated in evidence that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the sentencing judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had certainly not wielded a metal bar during the incident. The claim of self-defence was completely contrary to the central facts relied upon by the sentencing judge.

41    The applicant in this case refers to a passage in HZCP, where I observed (at [61]) that:

… whether “evidence” contrary to the findings on sentencing could be used by the Tribunal for the purpose of assessing remorse [of the applicant], but would not otherwise be capable of being taken into account, is perhaps problematic. …

42    In this case, the applicant gave evidence contrary to findings made on sentence in relation to whether he infected the victim with chlamydia and whether he had had sexual relations with the victim on more than three occasions. This was used by the Tribunal in assessing the applicant’s remorse and his insight into his offending.

43    The applicant stresses that:

(a)    the evidence in question was elicited from the applicant under cross-examination and by the Tribunal itself. It did not form a positive part of his case. The applicant was in an invidious position as he was required to answer the questions put to him truthfully having been affirmed by the Tribunal. Failing to do so would have constituted an offence: see ss 40, 62, 62A, 63 of the Administrative Appeals Tribunal Act 1975 (Cth); and

(b)    with the exception of its findings that the applicant’s evidence was implausible insofar as it contradicted the sentencing judge’s findings, the Tribunal did not find the applicant’s evidence to be untruthful or unreliable.

44    It is argued that in all the circumstances, there is considerable unfairness to the applicant to use evidence that he was bound to give truthfully, and where he was otherwise not found to be untruthful, to adversely assess his remorse and his insight into his offending. It is said that it was arguably unreasonable for the Tribunal to do so. Unreasonableness was mentioned only in passing. The applicant relies primarily upon HZCP.

45    The applicant also relied on another passage in HZCP where I said (at [68]):

… where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.’

46    It is said that the Tribunal plainly relied on evidence contrary to the sentencing facts and, therefore, erred by reaching its state of satisfaction as to whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa on the basis of this evidence which was beyond its authority to consider: HZCP per McKerracher J (at [68], [71], [77]) and per Colvin J (at [181]-[182]).

47    The applicant also emphasises that the error was material as it adversely affected the Tribunal’s assessment of the likelihood of the applicant reoffending which was of central importance to his application before the Tribunal and was the issue most in dispute between the parties. The assessment of the likelihood of the applicant reoffending added adverse weight to the first primary consideration which was, along with the third primary consideration, ultimately found to outweigh the considerations in the applicant’s favour. But for this error, the applicant asserts there was a realistic possibility of revocation (in the sense that it would not be fanciful or improbable): DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72 (at [60]) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (at [45]).

CONTENTIONS FOR THE MINISTER

48    The Minister reiterates that in affirming the delegate’s decision, the Tribunal:

(a)    found that the applicant’s child sex offences must be viewed very seriously, particularly in light of the sentencing remarks;

(b)    regarded the driving offences as serious;

(c)    also regarded the applicant’s earlier robbery (with violence) offences as serious;

(d)    considered that the applicant’s record of offending when viewed as a whole can be regarded as lengthy and persistent, and in summary could be regarded as frequent and as showing a trend of increasing seriousness;

(e)    stated that the applicant should have appreciated the consequences of further offending, particularly in light of department and court warnings, and the deportation of his two brothers;

(f)    concluded that the applicant’s offending, particularly his most recent convictions for child sex offences, was very serious and strongly weighed against the revocation of the cancellation of his visa;

(g)    found that there is a likelihood of the applicant reoffending if he is released back into the Australian community, and the risk is likely to be moderate to high in respect of general reoffending, and moderate to low with respect to sexual reoffending;

(h)    found that even a moderate to low risk of reoffending is unacceptable in respect of child sex offences;

(i)    concluded that the consideration of the risk to the Australian community should the applicant commit further offences or engage in other serious conduct weighed strongly against revocation;

(j)    concluded that the best interests of the applicant’s nieces and nephew weighed only slightly in favour of revocation ;

(k)    found that the expectations of the Australian community weighed strongly in favour of non-revocation;

(l)    found that the strength, nature and duration of the applicant’s ties to Australia weighed strongly in favour of revocation and the extent of impediments if he was removed to the United Kingdom weighed moderately in favour of revocation of the visa cancellation decision; and

(m)    ultimately concluded that the primary consideration of the best interests of the applicant’s nieces and nephew, and the considerations of the strength, nature and duration of the applicant’s ties to Australia and the impediments if removed, did not weigh in the applicant’s favour to the extent that they outweighed the primary considerations of the protection of the Australian community and the expectations of the Australian community.

49    I accept the correctness of this summary but note that it does not focus on the favourable findings for the applicant with respect to the various rehabilitation programs he has participated in, which I have set out above (at [18]-[32]).

50    The Minister submits that the findings of the Tribunal as to remorse (at [102]-[105]) do not demonstrate jurisdictional error. In particular, it is argued that they were not findings that were contrary to findings made by the judge in sentencing the applicant for his convictions of child sex offences.

51    The Minister contends that the effect of HZCP is that, upon review of a decision under s 501CA(4) refusing to revoke the decision to cancel a person’s visa, the Tribunal must accept that person’s conviction and sentence to a term of imprisonment for 12 months or more in determining whether it is satisfied that the person passes the character test as provided by s 501CA(4)(b)(i), except in very rare circumstances: HZCP (at [66]-[67] and [179]).

52    The Minister notes that:

    in considering the nature and seriousness of the applicant’s conduct to date, the Tribunal could not take into account any evidence of the applicant by which he sought to reduce the seriousness of the child sexual offences of which he was convicted, that was inconsistent with the facts upon which his convictions and sentence were based: HZCP (at [77]-[79]).

    unlike the applicant in HZCP, in relation to the Tribunal’s consideration of the nature and seriousness of his child sex offences the applicant here did not seek to rely upon evidence which impugned the facts found by the sentencing judge.

    the Tribunal’s findings (at [102]-105]) are findings in relation to the requirement under Direction No 79 for the Tribunal to have regard to the risk to the Australian community should the applicant commit further offences of the kind of which he was convicted. They are not findings which are precluded by HZCP because they are inconsistent with the findings of the sentencing judge upon which the convictions and sentence were based.

    contrary to the applicant’s contentions, the Tribunal’s findings in relation to the applicant’s evidence are based upon an acceptance that the Tribunal cannot go behind the facts upon which the sentencing of the applicant for his child sex offences was based. The Tribunal considered that as the applicant had given evidence that was inconsistent with the facts upon which the sentencing judge relied, that raised concerns about his remorse and insight into his offending.

53    The Minister contends that HZCP does not preclude the Tribunal having limited regard to the applicant’s evidence which was contrary to the facts relied upon by the sentencing judge in considering the applicant’s remorse and insight into his offending. The Tribunal did not thereby act in a manner that was inconsistent with the findings of the sentencing judge upon which the applicant’s sentence was based.

54    The Minister also says that even if the Tribunal’s consideration of the applicant’s evidence for assessing the applicant’s remorse and insight into his offending did involve error, it did not amount to jurisdictional error. At [106] the Tribunal referred to some identified treatment gains that the applicant had made through the completion of programs and counselling. The Tribunal considered that although it was likely that the applicant’s completion of these programs and the existence of other protective factors, together with insight into his offending, might reduce the likelihood of the applicant reoffending, a likelihood nevertheless remained, particularly given that the initial assessments were ‘moderate to high’ for sexual offending prior to completion of the ISOTP and ‘very high’ for general offending.

55    The Minster observes that the Tribunal concluded its reasons in relation to the risk to the Australian community (at [108]) by finding that there is a likelihood of the applicant reoffending should he be released back into the Australian community, and that that risk was likely to be moderate to high with general reoffending and moderate to low with respect to sexual reoffending. The Tribunal further found (at [108]) that the circumstances of the applicant’s child sex offences and the serious nature of the harm that can result to victims of this type of offending meant that even a moderate to low likelihood of reoffending in the future was unacceptable, and that this consideration weighed strongly against the revocation of the cancellation of the applicant’s visa.

56    In light of the Tribunal’s reasons, the Minister argues that even if the Tribunal had not had regard (at [102]-[105]) to the applicant’s evidence, that could not realistically have led to the Tribunal finding that there was no risk of the applicant reoffending, and nor could it realistically have resulted in the Tribunal not finding that this consideration weighed strongly against revocation. Therefore, if the Tribunal did fall into error by having regard to the applicant’s evidence (at [102]-[105]), such error could not realistically have resulted in a different decision by the Tribunal, and therefore was not material and did not amount to jurisdictional error: SZMTA (Bell, Gageler and Keane JJ at [38], [44] and [45]).

CONSIDERATION

57    The question to be determined is whether the Tribunal is permitted for the purpose of assessing the applicant’s remorse, and thereby the likelihood of his reoffending, to take into consideration evidence given by the applicant at the hearing which is contrary to the conclusions reached by the sentencing judge on matters which were not necessarily essential facts on which the conviction was recorded and the sentence imposed. In HZCP the evidence sought to be relied upon would have been totally exculpatory as the applicant there contended that he had only acted in self-defence and had not used the weapon he was found to have used.

58    The evidence given at the Tribunal hearing that the applicant says the Tribunal had regard to in its assessment of the applicant’s remorse was that:

(1)    Contrary to the sentencing judge’s findings, the applicant denied knowing that he had chlamydia when he infected the 14 year old victim with the disease; and

(2)    Contrary to the sentencing judge’s findings, the applicant denied having sexual relations with the victim on more than three occasions.

59    Two points that counsel for the applicant pressed in oral submissions were that:

(1)    The evidence relied upon by the sentencing judge to make the findings he did in relation to the two circumstances above was not before the Tribunal. The only evidence before the Tribunal was the statement of material facts which had been accepted on the guilty pleas by the applicant and which did not mention the applicant’s three sexual offences being ‘representative’ or the infection of the victim with chlamydia. However, it is clear that the sentencing judge did rely to some extent on each of those factors and did so from his earlier dealings with the case where, for example, the applicant’s position on chlamydia had been that he may have contracted it from the victim, a position he abandoned, but he maintained he was unaware that he had the condition – a fact the sentencing judge rejected.

(2)    The evidence given by the applicant contrary to the sentencing judge’s findings was adduced in cross-examination, so being elicited by counsel and the Tribunal and was not evidence put on by the applicant in support of his case.

60    This second factor, along with the focus on the applicant’s remorse, also distinguishes the present case from HZCP and the recent decision in XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813.

61    With these facts in mind, the applicant’s central contention is that the principle in HZCP extends beyond the proposition that, as a matter of statutory construction, the Tribunal is not permitted to impugn or go behind the findings of facts made by a sentencing judge. It extends such that the Tribunal is also precluded from assessing the truth or falsity of those facts. It must simply take them as read and established as the jurisdictional basis of the power under s 501CA(4) of the Act.

62    The applicant submits that without this extension of the principle as framed above, the following undesirable circumstance may prevail:

(a)    an applicant has received a criminal sentence which is, on balance, a fair one such that there is no merit to, or point in advancing, an appeal;

(b)    the applicant nonetheless disputes some of the conclusions expressed by the sentencing judge which did not form part of the agreed material facts;

(c)    before the Tribunal, the applicant is cross-examined under oath about those matters; and

(d)    the applicant is faced with a choice between lying under oath and accepting the facts found by the sentencing judge or denying those facts; which leads to

(e)    an almost inevitable finding by the Tribunal that the applicant does not display remorse at the time of the hearing and is attempting to ‘gloss over’ the seriousness of his offending in the hope of achieving a favourable visa outcome.

63    As noted in HZCP (at [55]), the jurisdictional basis of the discretion to revoke a mandatory cancellation of a visa under s 501CA(4) can be articulated as follows:

The power under s 501CA(4) cannot arise unless there has been a visa cancellation under s 501(3A) which, in turn, must have as its foundation, a conviction or a sentence of one of these kinds. Neither power would arise without the prior foundation of the requisite conviction or the sentence.

64    Given the basis of the power is predicated on the existence of a conviction and sentence, the Tribunal is not permitted to go behind the essential finding of facts that underpinned the conviction and sentence: HZCP (at [63]). The applicant argues that there is no latitude in the Tribunal’s consideration of ‘another reason’ to revoke under s 501CA(4)(b)(ii) for it to take into account any evidence put by an applicant that contradicts or rejects findings of the sentencing judge. The phrase ‘another reason’ cannot encroach upon, or impugn the necessary precondition of the fact that a criminal conviction and sentence exist: HZCP (at [70]).

65    The applicant argues that on this basis, there is no scope for findings as to remorse that are established based on evidence contrary to the facts underpinning the sentence.

66    In this case, (and no doubt others I would observe) the Minister has cross-examined an applicant on findings accompanying the sentence, thereby enabling evidence to be given by the applicant which is contrary to the facts found by the sentencing judge and it is these answers which have been applied by the Tribunal in its assessment of the applicant’s remorse. It is contended that the Tribunal has, in effect, relied upon evidence that contradicts the findings of the sentencing judge in its assessment of whether there is ‘another reason’ to revoke the mandatory cancellation under s 501CA(4)(b)(ii). This proposition is supported by the following statements in HZCP (at [68], [75]-[77]):

68    To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention. … But where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.

…

75    The sentencing judge was required to make the factual findings which the appellant directly sought to impugn before the Tribunal.

76    Further, and consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.

77    As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. …

(Emphasis added.)

67    But it must be noted that the following statements in HZCP suggest a narrower construction of the principle such that so long as the existence of the sentence or conviction is not challenged, the Tribunal is permitted to have regard to circumstances and facts that surround or relate to the sentence and conviction. At [56], citing Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (at [42]):

The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. …

At [78] and [184]):

78    The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

…

184    … In the Tribunal, evidence is simply the material before the Tribunal, however received. Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282. …

68    These passages suggest a construction of the principle that permits a consideration of the factual findings of the sentencing judge, and any inconsistent evidence later adduced, for purposes other than impugning the essential facts underpinning the conviction and sentence. Such a construction presents a significant barrier to an acceptance of the applicant’s proposition that a decision-maker is precluded from using the sentencing judge’s findings to conclude that inconsistent evidence later adduced is implausible.

69    Further light is shed on this issue by Colvin J in HZCP where his Honour said (at [191]):

However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose. In this case such questions do not arise because, for the reasons given by McKerracher J, the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke.

(Emphasis added.)

70    This passage emphasizes again that it is not open for a decision-maker to reach contrary conclusions to the essential facts underlying the conviction and sentence. That was what the applicant in HZCP sought to do, ‘without a compelling explanation’, and was correctly not permitted to do so by the Tribunal.

71    In this case, counsel for the applicant sought to advance a compelling reason why the sentencing judge’s findings as to the aggravating feature of infecting the victim with chlamydia should not be accepted. This fact was in issue throughout the sentencing process with the matter being adjourned so that further instructions could be sought in relation to the applicant’s claim that it could have in fact been the victim that had infected the applicant with chlamydia because she had previously been sexually active. Ultimately, the applicant’s counsel clarified the position by an email to that court in which it was stated that the applicant accepted he had infected the victim with chlamydia, albeit that he had done so unwittingly. The sentencing judge rejected however, the applicant’s claim that the infection had been unwitting, finding instead that ‘[i]t’s an infection which you undoubtedly would have had symptoms and been aware.’ Counsel for the applicant in this matter contends that there is reason to doubt this finding on the basis that chlamydia is a ‘notoriously asymptomatic infection’ and that the sentencing judge could not have had any evidence before him on which to make the positive finding that the applicant must have been aware of the disease.

72    This is not to say that the Tribunal should have found differently from the sentencing judge on this point (as was contemplated by ground 2 which was not pressed), but in having this evidence put before it by the Minister and using it to assess the applicant’s remorse, it is said that the Tribunal failed to consider the possibility that the evidence given by the applicant under cross-examination could be true. By accepting the finding of the sentencing judge as essentially ‘infallible’ (on both the chlamydia evidence and the representative nature of the sexual offences), both of which had been found by the sentencing judge to have occurred but neither of which had been included in the facts accepted for sentence by the applicant, it is argued that the Tribunal failed to properly assess the applicant’s remorse, instead holding that any evidence contrary to what the sentencing judge had found, must, as a matter of course, indicate a lack of remorse.

73    By inquiring into those areas, and in turn basing its conclusions on evidence given in those areas, the Tribunal was investigating the foundational facts, the applicant says, on which the conviction and sentence were based, contrary, he says, to HZCP. The applicant’s obligation before the Tribunal to give truthful evidence meant that when he was pressed on those matters in cross-examination, he gave answers which the Tribunal relied upon in doubting his remorse and in reaching conclusions as to the risk to the Australian community.

74    There are two important points, however, to note regarding the applicant’s infection of the victim with chlamydia, unwittingly or otherwise. The first is that although the applicant did eventually affirm the position that he unwittingly infected the victim with chlamydia in his evidence before the Tribunal, the Tribunal was correct in describing the applicant’s preceding evidence on this point as ‘evasive’ (at [102]). This is because the applicant raised before the Tribunal the possibility again that he may have contracted the disease from the victim and that the victim had had previous relationships. The second point, which was conceded by the applicant’s counsel, is that the Tribunal (at [102]) assessed the applicant’s evidence on a basis independent from the sentencing judge’s findings, the basis being that the victim was unlikely to have contracted the disease from anyone else ‘having just turned 14-years-old at the time the offending commenced.’ On a close reading, the Tribunal’s reasons (at [102]) do not actually make any findings about the applicant’s evidence on the specific point of whether he was aware that he had chlamydia at the time of his offending.

75    A further difficulty in the well-constructed argument for the applicant is that there was no exploration, let alone finding, which impugned the essential facts of the conviction and sentence because the inquiry about those matters was not directed at impugning anything contained in the sentencing remarks, but simply to explore the applicant’s current state of remorse. It is clear in my view that it is open to the Tribunal to explore and question matters surrounding the fundamental facts of the conviction and sentence.

76    The Tribunal may inquire into peripheral areas to explore the state of remorse at the time of the review as distinct from challenging or evaluating the degree of remorse as at the time of sentencing. It is entirely conceivable that the level of remorse could be different at the different times, in this case some two years apart.

77    There is a distinction between surrounding circumstances and those essential to the conviction and sentencing. The applicant says that the chlamydia factor was expressly treated as an aggravating factor in sentencing and the number of sexual encounters clearly had to be relevant to the sentencing even if only three counts were relied upon.

78    It is clear, as the applicant submits, that these two factors were not mentioned by the prosecutor in the agreed material facts. But it is also clear, as noted above, that the topic of chlamydia had arisen earlier in the course of the hearings as the applicant recanted on his first version of the facts after initially suggesting that he must have acquired the disease from the victim.

79    In my view, there are two reasons why the Tribunal did not go beyond the limits of inquiry and finding fixed by HZCP. The first reason is that the Tribunal, being entitled to explore current remorse as distinct from remorse at the time of sentencing, is entitled to explore that issue by testing what an applicant now says and feels about the offences. Secondly, although it could not reach a conclusion which directly conflicted with an essential fact of the sentencing, the aspects in question that the Tribunal used to assess the applicant’s remorse were not central. They were not part of the agreed facts. Further, and in any event, the conclusions on those matters by the Tribunal were entirely consistent with the conclusions of the sentencing judge on those points. Even if those conclusions were factually wrong (that is, primarily the conclusion by the Tribunal, consistently with the sentencing judge, that there must have been more than three sexual offences beyond the three of which he was charged, in light of the Tribunal’s actual approach to the chlamydia evidence as noted above at [71] and [74]), they would not normally give rise to an error of law. HZCP would not preclude, especially in the context of considering remorse, an examination of the facts and findings surrounding, but not essential to, those necessarily supporting the conviction and sentence.

Materiality

80    It is necessary to turn now to consider if, contrary to my findings above, there was a legal error in the Tribunal’s assessment of remorse, whether such an error was material. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 concerned the refusal of a partner visa. The Tribunal affirmed the refusal made by the delegate on two separate and independent bases. The first being that the appellant had failed to comply with the relevant timing criterion and that there were no compelling reasons for not applying the criterion. The second basis was the appellant’s failure to satisfy a public interest criterion by virtue of having a debt outstanding to the Commonwealth. On review, it was accepted that the Tribunal had fallen into error by assessing whether there were compelling reasons in relation to the timing criterion at the time of the application being made, rather than at the time of its own decision. The Tribunal’s reasoning in relation to the public interest criterion was not impugned.

81    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia with the primary judge setting aside the decision, holding that the Tribunal’s error in relation to the timing criterion was jurisdictional and it had thus acted without authority. On appeal to the Full Court, a majority of the Court agreed with the primary judge that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision. The High Court, unanimously upheld that decision on appeal, albeit for reasons different from those of the Full Court, in a joint judgment by Kiefel CJ, Gageler and Keane JJ which I will address in more detail below.

82    SZMTA was one of three appeals heard by the High Court collectively that concerned the effect on a review by a Tribunal under Pt 7 of the Act of a notification given by the Secretary of the Department to the Tribunal that s 438 of the Act applied in relation to a document or information.

83    In each case, neither the Tribunal nor the Secretary disclosed to the visa applicant the fact of the notification purportedly made under s 438 (see SZMTA at [54], [59] and [66]). In the two other matters heard with SZMTA, s 438 did not apply to any documents or information before the Tribunal, and so the notification was invalid. In SZMTA, s 438 did not apply to at least some of the documents or information before the Tribunal, and so the notification was invalid to at least that extent.

84    The High Court unanimously held (Bell, Gageler and Keane JJ at [27]-[31], Nettle and Gordon JJ at [78]) that the fact of a notification to the Tribunal that s 438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant. Importantly for present purposes, the majority also held (Bell, Gageler and Keane JJ at [2]) that a breach by the Tribunal of that obligation will result in jurisdictional error if, and only if, the breach is material, in the sense that the breach deprives the applicant of the possibility of a successful outcome.

85    These two decisions suggest that an assessment of jurisdictional error ought to be made, first by identifying any relevant error of law and secondly by assessing whether such an error has materially affected the decision.

86    In Hossain, the plurality (Kiefel CJ, Gageler and Keane JJ) said (at [25] and [30]-[31]):

25.    To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised".

…

30.    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

31.    Thus, as it was put in Wei v Minister for Immigration and Border Protection [(2015) 257 CLR 22], "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the [Act], consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(Emphasis added, citations omitted.)

87    In SZMTA, the majority (Bell, Gageler and Keane JJ) observed similarly (at [45]-[46]):

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

(Emphasis added.)

88    The recent reasons of Colvin J in PQSM v Minister for Home Affairs [2019] FCA 1540 (at [27]) provide a helpful summary of this Court’s application of the High Court’s reasoning in Hossain and SZMTA:

The factual inquiry is into whether the relevant error by the decision-maker was material in the sense that it denied the applicant a possibility of a successful outcome, or could realistically have resulted in a different decision: [Minister for Home Affairs v] Ogawa [2019] FCAFC 98 at [120] (Davies, Rangiah and Steward JJ). This inquiry has been variously expressed (by reference to the language used in SZMTA) as being whether the breach 'deprived the appellant of the realistic possibility of a successful outcome' (CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [59]), or just the 'possibility of a successful outcome' (BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [60]), or whether compliance 'could realistically have resulted in a different decision' (Khalil [v Minister for Home Affairs [2019] FCAFC 151]] at [49]; Nguyen [v Minister for Home Affairs [2019] FCAFC 128] at [52]) or 'could have changed the result' (CQR17 [v Minister for Immigration and Border Protection [2019] FCAFC 61] at [43] (Jagot J)).

89    To that summary may be added that in EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299, the Full Court (Allsop CJ, Markovic and Steward JJ) described the relevant threshold as whether the error ‘could have affected the outcome of the review’ (at [40]-[44], citing Hossain at [31]). Their Honours said that whether that is so will normally turn on an analysis of the appellant’s claims and the reasons given by the administrative decision-maker, in that case the Immigration Assessment Authority.

90    It also assists to consider the question of materiality specifically in the context of the review of a revocation decision under s 501CA(4) and the Tribunal’s application of Direction No 79 (or its predecessors). PQSM was one such case. There, the applicant relevantly alleged failures by the Tribunal to consider the effect of cancellation on the applicant’s partner and adult children, and the health issues of the applicant. Although his Honour found an error of a ‘limited nature’ with respect to the former and no error as to the latter, his Honour proceeded to consider whether an aggregation of such ‘errors’ could have been material and held (at [89]):

In my view, this is not a case where the aggregation of the breach that I have found as to ground 1 together with the possible breach as to ground 3 would result in a conclusion that those matters could have had anything more than marginal significance. In the context of the Tribunal's reasoning, treating both matters as breaches of the obligation to comply with the Direction, they do not together amount to failures that could realistically have affected the outcome if they were added to the weighing process undertaken by the Tribunal. I reach that conclusion bearing in mind that the evaluation of their significance is to be undertaken on the basis that it is the Tribunal that is to perform the weighing process and not the Court.

91    In another recent decision, Paszkiewicz v Minister for Home Affairs [2019] FCAFC 198, the Full Court (Middleton, Kerr, Annastassiou JJ) considered (at [33]-[35]) whether the Tribunal’s failure to respond to the applicant’s specific contention that he would be ‘better able to provide financial support if he remained in Australia’ was a material error; in circumstances where the Tribunal had responded generally to the applicant’s submissions that two young children needed his care and support and would be adversely affected by his removal. At [35], their Honour’s said:

Then, as the primary judge additionally found at [38], it is difficult to see how a failure to respond to the contention could realistically have made a difference to the outcome, given the Tribunal’s findings in relation to the primary consideration of the protection of the Australian community, and the favourable finding that that it was in the interests of the children to revoke the cancellation: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[30] per Kiefel CJ, Gageler and Keane JJ.

92    However, the opposite conclusion was reached by Rangiah J in Mouflih v Minister for Home Affairs [2019] FCA 1744, in circumstances where the Minister failed to consider documents that were likely ‘misplaced by the Department’ which relevantly included a series of medical reports concerning the psychiatric condition of the applicant’s wife. In considering whether the failure to consider such information was material, his Honour said at [51]:

…However, if the Minister had read Dr Cruickshank’s reports, together with the other material before him, he may have found that Mrs Mouflih’s psychiatric condition had deteriorated to the point where she was struggling with daily life due to the impending deportation of her husband. Mrs Mouflih was the victim of the applicant’s offence, but evidently considered that she had also been made a victim of the cancellation decision. The Minister expressed concern in his reasons about the impact of the offence upon Mrs Mouflih. The impact of the decision upon Mrs Mouflih obviously weighed heavily upon the Minister, as is indicated by his references to the emotional and other hardship she would face. It is impossible to know whether or not the weight added to Mrs Mouflih’s claim that her mental health had declined to the point that she was experiencing substantial hardship by the evidence that Mrs Mouflih already suffered from a psychiatric condition would have tipped the balance in favour of revocation of the cancellation decision. But it may have. The Minister’s failure to consider Dr Cruickshank’s reports denied the applicant the realistic possibility of a successful outcome. That is not a high threshold.

(Emphasis added.)

93    Finally, and very recently, in DQM18 v Minister for Home Affairs [2020] FCAFC 110, Bromberg and Mortimer JJ made a number of important observations as to the meaning of a ‘realistic possibility’ in the context of a decision under s 501CA(4) of the Act. At [113]-[114], their Honours reasoned that:

113.    Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.

114.    Such an exercise is likely to involve an adjudication on the merits of the exercise of power under review and to also involve the court speculating about the decision-maker’s state of mind, both of which this Court cannot and should not do. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and SZMTA is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.

(Emphasis added.)

94    It should be noted that this decision was handed down after the hearing in this matter however I do not consider it necessary to provide the parties an opportunity to provide submissions on it. The parties were not in dispute as to the construction of the materiality inquiry and the above passage is simply illustrative of the task within the specific context of decisions under s 501CA(4).

95    With these authorities in mind, the question is whether any imputed error in the Tribunal’s assessment of the applicant’s remorse deprived the applicant of a realistic possibility of a successful outcome. In this case, I have concluded that there was no legal error in the Tribunal’s review of the decision. But if I am wrong about that, I would accept that the applicant has demonstrated the purported error to be material. I have cited the detail of the Tribunal’s careful judgment at considerable length for the purpose of demonstrating that despite the gravity of these offences, and the findings as to the expectations of the Australian community, almost all findings concerning the applicant other than the remorse findings, (based, it is asserted, on material the Tribunal should not have examined), were of a favourable nature. In those circumstances, I consider that it is realistically possible, in the sense that it is not fanciful or improbable, that the Tribunal could have reached a conclusion favourable to the applicant if the adverse remorse factors were not taken into account. In that sense, if (contrary to my conclusion), there had been a legal error, it was material to the conclusion reached and therefore would have given rise to jurisdictional error.

Associate:

Dated:    22 July 2020