FEDERAL COURT OF AUSTRALIA

Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs, 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

ANDERSON J:

SUMMARY

1    By way of summary, this proceeding concerned two main issues. First, the Applicant contended that the Administrative Appeals Tribunal’s receipt and consideration of documents which contained certain hearsay evidence ensured the Tribunal failed to adequately afford procedural fairness to the Applicant. I do not accept that contention given the matters disclosed in the record of the Tribunal’s hearing of the matter. In particular, the relevant hearsay statements were provided to the Tribunal without the Applicant’s legal representatives at that time objecting to that provision. The Applicant was also taken to those hearsay statements during the Tribunal’s hearings and the Applicant was given an adequate opportunity to comment upon them.

2    Second, the Applicant contended that a certain part of the Tribunal’s reasoning – to the effect that the Applicant posed a real risk of sexual reoffending – was irrational, illogical or unreasonable. It was said that either there was no probative evidence to support such a finding or that such a finding was not open on the evidence. I do not accept that submission. There was evidence in the record to support the Tribunal’s finding that the Applicant did not accept the Applicant’s conviction of the single charge of rape under the Crimes Act 1958 (Vic). A proper interpretation of the relevant statutory framework shows that it was open to the Tribunal to have regard to that factor. I have also reviewed the Tribunal’s reasoning which the Applicant challenges and it should not be accepted that the Tribunal’s decision is one to which no rational or logical decision-maker could arrive on the same evidence.

3    In these circumstances, the Applicant’s application must be dismissed with costs. These are my reasons for doing so.

The Court’s Role in this application

4    Before setting out those reasons, the distinction between judicial review and merits review should be briefly noted. The question for the Tribunals’ determination was whether the relevant decision was the correct or preferable one on the material before the Tribunal (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (per Bowen CJ and Deane J)). That was not this Court’s role in this proceeding.

5    By way of brief overview, this Court’s role was reviewing the Tribunal’s decision – not in an effort to remake it according to this Court’s own view of the merits of the matter, but to ensure that the Tribunal stayed within the legal limits imposed on the Tribunal’s relevant decision (Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 35-36 (per Brennan J)). The duty and jurisdiction of this Court in reviewing administrative action does “not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of” the Tribunal’s power (ibid).

6    It should therefore be apparent that the merits of an administrative decision are distinct from the decision’s legality (ibid). Such merits were a matter for the Tribunal and for the Tribunal alone (ibid). One qualification to that position (which “may appear to open the gate to judicial review of the merits of a decision”) is the ground of review associated with “unreasonableness”: a purported administrative decision is invalid if it is “so unreasonable that no reasonable” decision maker “could have taken the impugned decision or action” (ibid; emphasis added). However, it has been said that this limitation is “extremely confined” (ibid).

7    These types of considerations should be kept in mind in the review of the Tribunal’s decision set out in this judgment.

BACKGROUND to this application

8    The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), namely HLKD and Minister for Home Affairs (Migration) [2019] AATA 4679 (Tribunal’s Reasons). The Tribunal’s Reasons affirmed an earlier decision of a delegate of the Minister not to revoke a mandatory cancellation of his Class BF transitional (permanent) visa (visa). The Second Respondent, the Tribunal, filed a submitting notice and took no further part in the proceeding.

9    The Applicant is a 61 year-old citizen of the United Kingdom who arrived in Australia when he was 4 years of age. He has a criminal history in Australia which includes a conviction for rape in 2016 for which he was sentenced to 36 months’ imprisonment with a non-parole period of 24 months. By way of brief background, and merely for the purpose of providing context to matters addressed later in these reasons, I note that the Victorian Court of Appeal described the relevant criminal conduct as follows:

The [relevant] complainant woke to find the [Applicant] on top of her while she was lying on her back … The complainant tried to push him off but could not … The complainant could not remember if the [Applicant] was sitting or lying on her but either way he was on top of her. … The complainant told him to get off … The [Applicant] reached around [and] put his fingers inside her vagina. After ten minutes the [Applicant] withdrew his fingers (Bullmore v The Queen [2017] VSCA 41 at [8]).

10    Pausing there, it should be noted immediately that the relevant “conviction and sentence must be conclusive” (Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197; 92 FCR 560 (SRT) at [46]). It was not for the Tribunal to reopen the factual findings which underpinned the Applicant’s conviction and sentence.

11    Following the Applicant’s rape conviction, on 14 June 2017, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). On 4 July 2017, the Applicant sought revocation of the cancellation decision. On 21 August 2019, a delegate of the Minister decided not to revoke the mandatory cancellation under s 501CA(4) of the Migration Act. On 23 August 2019, the Applicant sought review of the revocation decision. On 12 November 2019, the Tribunal affirmed the delegate’s decision not to revoke the cancellation.

12    On 16 December 2019, the Applicant commenced this proceeding. The Applicant filed an Amended Application for judicial review on 2 April 2020 which contains 3 grounds of review. Ground 2 is no longer pressed.

13    On 24 February 2020, I ordered the First Respondent (Minister) to file with this Court the material which was before the Tribunal when the Tribunal made its decision. These materials were filed on 11 March 2020 and were referred to as the Relevant Documents in the parties’ submissions. The Relevant Documents included over 500 pages of evidentiary material.

14    Some of this material was obtained by the Minister pursuant to summonses or subpoenas the Minister sought. Those compulsory production notices were directed to the Victoria Police and Queensland Police. Part of the documents returned pursuant to these compulsory production processes were police force internal documents containing allegations of fact some of which were never tested in a criminal court. In the Tribunal proceeding, the Minister’s solicitor cross-examined the Applicant, including about his criminal history, by reference to these police records.

Ground 1

15    By ground 1, the Applicant contends the following:

The Tribunal denied the Applicant procedural fairness when it admitted into evidence and/or relied on police summaries which contained assertions that were untestable by the Applicant because the Minister did not disclose the identities of, and elected not to call, the makers of those assertions.

Particulars

The police summaries are at [Court Book] 345, 349 and 493.

(Bold and underlined text in the original.)

Applicant’s submissions on ground 1

16    The Applicant’s submissions on ground 1 can be summarised as follows.

17    A major premise of the Applicant’s submissions on ground 1 was set out by reference to Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 at [25]. That paragraph provided (among other things) that:

… “No tribunal” …, “without grave danger of injustice”, may set aside the common law rules of evidence and “resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party”: R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. Reliance upon material which cannot be tested may well constitute a denial of procedural fairness. There should, for example, be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case: eg. Pearce v Button (1985) 8 FCR 408 at 422 per Lockhart J. App’ld: Clean Ocean Foundation v Environment Protection Authority [2003] VSC 335 at [29], 20 VAR 227 at 235 per Balmford J. Reliance cannot be placed upon material which has no probative weight, particularly when it would be procedurally unfair to do so: eg. Yelds v Nurses Tribunal [2000] NSWSC 755 at [28], 49 NSWLR 491 at 503 per Adams J. (Internal quotations in the original.)

18    The Applicant’s minor premise entailed the following main propositions. First, it was said that paragraphs [47], [51], [52] and [57] of the Tribunal’s Reasons described cross-examination of the Applicant by reference to certain police summaries. The Applicant submitted that these summaries and the cross-examination were plainly relied upon by the Tribunal in its reasoning. Second, the Applicant contended that the Applicant was cross-examined on those police documents and the correctness of those documents could not be tested given their makers (namely, the relevant police officers) were not called. (It should be said in this regard that the parties’ submissions proceeded on the basis that these police documents contained hearsay evidence. There was no submission that these documents either did not contain hearsay evidence or were otherwise subject to a relevant exception to the rule against hearsay.) Third, the Applicant said that he did not have put to him in the Tribunal that his oral evidence was a lie, but the Tribunal nevertheless found that the Applicant's evidence was untrue.

19    On the basis of these premises, the Applicant says it follows that he was denied procedural fairness. The Applicant submitted that purported denial ensured there was no probative evidence to support a conclusion that the Applicant’s evidence in the Tribunal was a lie.

20    After setting out that general logic, the Applicant’s submissions then sought to analyse certain police summaries in order to establish the factual propositions which comprised certain of the premises of the Applicant’s submissions.

The Applicant’s submissions on the first police summary

21    The Applicant referred to the first police summary as “RD499”. I presume “RD” is an acronym for “Relevant Documents” given “RD” was a label applied to the footer of each page of the Relevant Documents filed with this Court on 11 March 2020.

22    In respect of this first police summary (ie “RD499”) (First Police Summary), the Applicant’s submissions indicated that it related to an incident in 2010 which culminated in a finding of guilt on 19 June 2012 for a single offence of common assault.

23    By way of summary, the Applicant submitted the following in relation to the use of the First Police Summary in the Tribunal. First, it was said that the Applicant could not identify the author of the summary, or call him or her to give evidence in the Tribunal in order to verify the assertions contained in the First Police Summary.

24    Second, the Applicant contended that the Minister’s solicitor cross-examined the Applicant on the First Police Summary, the Applicant denied certain of the allegations contained in the document, and it was never put to the Applicant during cross-examination in the Tribunal that the Applicant’s denials were untruths.

25    Third, the Applicant submitted that the Minister put no material before the Tribunal to verify the facts asserted in the First Police Summary.

26    Fourth, the Applicant said that the Minister's solicitor cross-examined the Applicant on this First Police Summary, the Applicant denied much of the allegations contained in the document and it was never put to the Applicant during cross-examination in the Tribunal that the Applicant’s denials were lies. The Applicant’s submissions at times appeared to indicate that this constituted a purported infringement of the rule in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).

27    In these circumstances, the Applicant submitted that it was procedurally unfair that the Minister’s solicitor made a submission to the effect that the Applicant’s denials under oath should be rejected. It was said to be unfair given it had not been put to the Applicant that such denials were lies while submitting that the unverified hearsay statements in the First Police Summary should be given primacy over the Applicant’s denial under oath.

28    The Applicant says procedural fairness required that the Tribunal’s reasoning take a different course. The Applicant submitted that the Tribunal should have rejected the First Police Summary and the cross-examination that depended on it, or given zero weight to this documentary and oral evidence. In the Applicant’s submission, the Tribunal should have adopted one of these courses because the Minister urged the Tribunal to reject the Applicant’s denials in circumstances where the Applicant contends that there was an absence of probative evidence that could logically or rationally support a conclusion that the Applicant’s denials were lies.

The Applicant’s submissions on the Second Police Summary

29    The second police summary was said to be an extract from the Victoria Police “LEAP” database (and was referred to in submissions as “RD349”) (Second Police Summary). The Applicant submitted the following in relation to it.

30    First, it was said that the Second Police Summary was not prepared with a view to it being presented in Court, and that there was no indication that the assertions in it were ever checked or verified.

31    Second, the Applicant submitted that the Second Police Summary does not have the name of any police officer. As a result, the Applicant said that it was not possible for the Applicant to test the truth of the assertions in the statement.

32    Third, the Applicant contended that the Tribunal denied the Applicant procedural fairness in relying upon the Second Police Summary to draw certain credit and character conclusions in the Tribunal’s Reasons at [51] and [103]-[106]. This procedural unfairness was said to arise given two matters. The age of the incident referred to in the Second Police Summary was said to be dated and, as a result, it was submitted that the Applicant had an inability to recall certain details of that incident. It was also submitted that the Applicant was unable to test the truth of the assertions in the Second Police Summary by cross-examining the maker of those assertions.

33    Fourth, the Applicant also submitted that it was never put to him that he had lied in his answers during cross-examination in the Tribunal on the Second Police Summary.

34    These propositions were the basis for the Applicant’s submission that there was a denial of procedural fairness in the Tribunal placing reliance on the Second Police Summary as the foundation for certain of the Tribunal’s conclusions concerning the Applicant’s credit and character.

The Applicant’s submissions on the third police summary

35    The Applicant submitted that the same procedural fairness issues which arose in relation to the First Police Summary and the Second Police Summary also arose in relation to the third policy summary (which was referred to as “RD345”) (Third Police Summary).

36    By way of summary, the Applicant identified what were said to be three primary problems with the Tribunal’s use of the Third Police Summary. First, the Applicant submitted that [57]-[58] of the Tribunal’s Reasons relied upon the Third Police Summary and the cross-examination of the Applicant in respect of the incident referred to in the Third Police Summary. Again, the Applicant submitted that the Minister did not tender any evidence before the Tribunal as to any facts found by the relevant sentencing court (ie the sentencing court which was involved in the incident referred to in the Third Police Summary). It was said that the Minister instead relied on Victoria Police’s “case progress narrative” as a proxy, without any attempt to prove its accuracy by way of tendering corroborating documents or calling witnesses.

37    Second, the Applicant submitted that the Minister’s solicitor cross-examined the Applicant in respect of the Third Police Summary but the Minister did not prove the facts which underpinned the conviction referred to in that summary. In this context, the Applicant submitted that he was denied procedural fairness when the Tribunal at [105] of the Tribunal’s Reasons specifically rejected the Applicant’s oral evidence in the Tribunal and relied on the Third Police Summary as the version of truth.

38    Third, the Applicant submitted that he was denied procedural fairness given it was never put to him that his version of events was a lie and he could not test the Third Police Summary for its accuracy given the Minister did not call the maker of the statements in the Third Police Summary.

39    For these reasons, the Applicant submitted that he was denied procedural fairness.

Minister’s submissions on ground 1

40    The Minister’s submissions proceeded on the basis that the Tribunal was required to afford procedural fairness to the Applicant. The contest between the parties was therefore what that obligation required in the circumstances of this case and whether those requirements were adequately observed by the Tribunal.

41    The Minister also appeared to accept that it is apparent from the Tribunal’s Reasons that the Tribunal in arriving at its decision had regard to the First Police Summary, the Second Police Summary and the Third Police Summary (collectively, the Police Summaries). The Tribunal expressly referred to the Second and Third Police summaries. The Minister also accepted that, whilst the Tribunal did not expressly refer to the First Police Summary, this does not mean that it was not taken into account by the Tribunal in arriving at its findings at [104] of the Tribunal’s Reasons. In that paragraph, the Tribunal observed that it preferred “the evidence provided under summons in the police report [as opposed] to the [Applicant’s] somewhat selective recollection of the circumstances that led to [certain] charges being laid and [the Applicant’s] conviction in respect of the incident” that formed the basis of the Second Police Summary.

42    In respect of the incident the subject of the Third Police Summary, the Minster noted that the Tribunal set out the contents of that summary at [57] of the Tribunal’s Reasons and observed the following at [105] of those reasons:

… on balance the Tribunal prefers the contents of the contemporaneous police report provided under summons as a more comprehensive account of the basis of the charges laid against [the Applicant] which led to his conviction, and is not persuaded by the less complete explanation of the events given by [the Applicant] to the Tribunal in relation to this incident [which was the subject of the Third Police Summary].

43    In this context, the Minister made a number of submissions which were opposed to the Applicant’s position. First, it was submitted that the weight to be given to the Police Summaries was a matter for the Tribunal, and the Tribunal found at [104] of the Tribunal’s Reasons that it preferred the evidence provided under the relevant summonses as opposed to the Applicant’s “somewhat selective recollection”.

44    Second, the Minister submitted that there was no denial of procedural fairness given the Applicant was afforded the opportunity to comment upon each of the three Police Summaries in the course of the Applicant being cross-examined by the Minister’s legal representative in the Tribunal.

45    Third, the Minister said that the Applicant’s legal representatives did not object to the three Police Summaries being provided to the Tribunal. Absent any such objection being made and upheld, the Minister submitted that the Tribunal’s reliance on the three Police Summaries became merely a question of weight for the Tribunal to determine.

46    Fourth, the Minister submitted that, contrary to the Applicant’s submissions, each of the three Police Summaries contained an officer’s name and registration number. In this respect, the First Police Summary (i.e. page “RD499”) does not appear to contain an express reference to an officer’s name, but page “RD504” appears to be a part of the same “Court Brief” and that page refers to the initials and family name of an “Action Officer”. The Second Police Summary (i.e. page “RD349”) and the Third Police Summary (i.e. page “RD345”) appear to refer to the last name of an “investigating mbr” (and it seems possible that “mbr” might be shorthand for “member”). However, those matters were not sufficiently addressed in argument in this Court and, as a result, I have not considered them further.

47    Fifth, the Minister submitted that, insofar as the Applicant contends that the rule in Browne v Dunn was not observed, the Applicant’s submission was said to be misconceived. The Minister submitted that there is no general rule in the Tribunal that a witness must be cross-examined to give him or her an opportunity to answer particular submissions or findings which may be made later (citing Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) per Flick and Perry JJ at [158] with Logan J agreeing at [48]).

48    Sixth, the Minister submitted that, in any event, the requirements of the rule in Browne v Dunn may be satisfied prior to a hearing where one party provides to the other notice of a case which it proposes to make in reliance on documents to which the other party has access and of the inferences proposed to be drawn from them (citing Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 per Hunt J at [16] and [26] and White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; 156 ALR 169 per Goldberg J at 220).

49    On the basis of these submissions, the Minister submitted that there was no denial of procedural fairness by the Tribunal given all that procedural fairness required in this case was to put to the Applicant (in the course of the Applicant’s oral testimony) the nature of any differing version of events as contained in the Police Summaries. It was said that, insofar as there was any difference between the Applicant’s evidence and the evidence contained in the Police Summaries, then there was no denial of procedural fairness by the Minister given that, prior to the Tribunal hearing, the Applicant and the Applicant’s legal representatives had access to the Police Summaries and, as a result, were on notice of the nature and content of the factual basis upon which the Minister would submit to the Tribunal that the Applicant’s application should be dismissed.

50    In addition, the Minister submitted that the Applicant had the benefit of responding to the content of the Police Summaries by way of the Applicant’s oral evidence in the Tribunal and particularly in response to questions put to the Applicant during cross-examination. The Minister also submitted that the Minister’s statement of facts, issues and contentions before the Tribunal referred to the Applicant’s criminal history including certain history disclosed by way of the documents produced in response to the document production notices issued to the Victoria and Queensland Police. As a result, the Applicant and the Applicant’s legal representatives were, the Minister submits, on notice as to the case that the Minister was asserting against the Applicant before the Tribunal.

51    Finally, the Minister submitted that there was no requirement of procedural fairness to put to the Applicant in cross-examination that his oral evidence was a lie. The Minister submitted that is not what the rule in Browne v Dunn requires.

Consideration of ground 1

52    I do not accept the Applicant’s submission that the Tribunal denied the Applicant procedural fairness by way of its use of the three Police Summaries. I have reached that view for three main reasons.

53    First, the Applicant’s invocation of the “rule in Browne v Dunn” is not adequately supported by authority and therefore does not support the Applicant’s position. Second, the statutory context does not adequately support a conclusion that the Tribunal, in discharging its obligation to afford procedural fairness, was required to ensure that the makers of certain hearsay statements were called and cross-examined. Third, and by way of summary, where there was material on which the Tribunal’s decision might be based that was adverse to the Applicant, then it was required that the substance of that material was made known to the Applicant and an opportunity was given to the Applicant to respond to it. A review of the course of the hearing in the Tribunal demonstrates that requirement was adequately observed by the Tribunal.

The rule in Browne v Dunn does not assist the Applicant

54    As I have indicated above, certain aspects of the Applicant’s submissions relied on “the rule in Browne v Dunn”. At the hearing of this application, Counsel for the Applicant stated that the rule in Browne v Dunn was “part of the context” in which it was said there was a denial of procedural fairness.         

55    However, to the extent the Applicant relied on the rule in Browne v Dunn, as I have said, such reliance is not adequately supported by authority. That position is apparent from the following relevant authorities.

56    First, in Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 (S154) at 450, Gummow and Heydon JJ (with whom Gleeson CJ agreed at [1]) stated the following at [55] and [57]:

On occasion the submissions advanced for the prosecutrix were couched in the language of a contention that the rule in Browne v Dunn had not been complied with. Where a complaint is made about the failure of a questioner to put to a person giving oral answers a particular question, it is natural for a lawyer’s mind to turn to the rule in Browne v Dunn. In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness. However, the rule has no application to proceedings in the tribunal …

Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. (Emphasis added.)

57    Second, Logan J referred to this authority in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 (Sullivan) at [46]-[48]. His Honour stated that the rule in Browne v Dunn “was held in S154 to be inapplicable to proceedings in the Refugee Review Tribunal” and there “is no relevant distinction to be drawn between that tribunal and the Administrative Appeals Tribunal so far as the rejection of the direct applicability of that rule is concerned”.

58    Third, Flick and Perry JJ in Sullivan also referred (at [149]) to the statements of Gummow and Heydon JJ in S154 extracted above. Their Honours stated that the relevant observations were “made in respect to the Refugee Review Tribunal”, but, “importantly, no attempt was made to seek to distinguish the case where the administrative decision maker was the Administrative Appeals Tribunal”.

59    Fourth, I respectfully agree in this respect with Robertson J’s statement, made with specific reference to the Administrative Appeals Tribunal, that, “in light of the origins of the rule [in Browne v Dunne,] … it is apt to mislead” (Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013] FCA 860 at [118]; 216 FCR 32 at 56). Invoking the principles of procedural fairness by reference to Browne v Dunn tends “to give proceedings in the tribunal an unwarranted curial gloss” (ibid). Departures from the principles of procedural fairness can and should be addressed without recourse to Browne v Dunn (ibid). This is particularly so where the principles of procedural fairness, particularly in relation to tribunals, “are now far more developed than they were at the time Browne v Dunn was decided” (ibid).

60    In these circumstances, references to the rule in Browne v Dunn in a matter such as this can involve a mislabelling of matters which should properly be considered under the rubric of the rules relating to procedural fairness.

The statutory context does not assist the Applicant

61    As to the statutory context, s 501CA of the Migration Act relevantly provides that:

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

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

(b)     the Minister is satisfied:

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

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

(Bold and italicised text in the original.)

62    Second, the “Minister may give written directions to a person or body having functions or powers” under the Migration Act “if the directions are about … the performance of those functions” or “the exercise of those powers” (Migration Act, s 499(1)). A person or body “must comply” with such a direction (Migration Act, s 499(2)).

63    In this respect, the relevant Minister has given a written direction (which is titled “Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79)). Direction 79 provides (among other things) that a decision maker “must take into account the considerations in Part C” of Direction 79, “in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked” (Direction 79, [7(1)(b)]). “In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa”, a relevant “primary consideration” includes the protection “of the Australian community from criminal or other serious conduct” (Direction 79, at [13(2)(a)]). Direction 79 further sets out a framework concerning a decision under s 501CA(4) of the Migration Act.

64    Third, applications “may be made to the Administrative Appeals Tribunal for review of … decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa” (Migration Act, s 500(1)(ba)). The procedure of the Tribunal is governed by the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In carrying out its functions, “the Tribunal must pursue the objective of providing a mechanism” of review that “is accessible”, “is fair, just, economical, informal and quick”, “is proportionate to the importance and complexity of the matter” and “promotes public trust and confidence in the decision‑making of the Tribunal” (AAT Act, s 2A) (the Statutory Objective). A “party to a proceeding before the Tribunal, and any person representing such a party, must” also use “his or her best endeavours to assist the Tribunal to fulfil” this Statutory Objective (AAT Act, s 33(1AB)).

65    In addition, in a proceeding before the Tribunal, “the procedure of the Tribunal is, subject to [the AAT Act] and the regulations and to any other enactment, within the discretion of the Tribunal” (AAT Act, s 33(1)(a)). Such a proceeding “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit” (AAT Act, s 33(1)(b)). The “Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” (AAT Act, s 33(1)(c)). Subject to ss 35, 36 and 36B of the AAT Act, “the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents” (AAT Act, s 39(1)).

66    Given these matters, and by way of summary, the relevant statute directed that the Tribunal could “revoke the [relevant] original decision if” the Tribunal “was satisfied” of at least one of two criteria. Those two criteria were “that the person passes the character test (as defined by s 501)” or “that there is another reason why the original decision should be revoked”. The Tribunal was required to conduct that enquiry in accordance with Direction 79 and the AAT Act. The Tribunal was required to do so in a manner which pursued the Statutory Objective, and by way of means that accorded with the mandated considerations in Direction 79 and the procedure set out in the AAT Act.

67    These are matters which, without more, weigh against importing into the Tribunal’s decision-making process detailed consideration of whether or not material ought be excluded from consideration under the technical rules related to the rule against hearsay. There is no obvious legislative intention to import in to the Tribunal’s procedures any universal requirement to observe the rule in Browne v Dunn. Nor is there any obvious legislative direction which would mandate that the makers of out-of-tribunal statements be called and cross-examined in the course of a Tribunal hearing. The Applicant’s submissions also did not adequately identify any matters which could provide a basis in the relevant statutory materials for the Applicant’s position.

What was required to afford procedural fairness

68    Given the matters set out above, further consideration of the “rule in Browne v Dunn” can be placed to one side. In order to address the Applicant’s other submissions, it is first necessary to be clear as to what was required of the Tribunal by reference to the authorities. That requirement can be expressed in the following way.

There is no universal requirement of cross-examination

69    First, there is no automatic, unqualified or universal rule as to when an administrative decision maker would be required to facilitate cross-examination of, or not rely on, material which emanates from a source that has not been tested by way of cross-examination in the Tribunal. In this respect, the relevant principles can be summarised as follows.

70    Justices Flick and Perry noted the following in Sullivan (at [157]-[158]):

…. [A]dministrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination: O’Rourke v Miller (1985) 156 CLR 342. It was there alleged that a probationary police constable had engaged in disorderly and drunken conduct and had misused his police badge. He denied allegations made against him but was denied the opportunity to confront the complainants and to cross-examine. In concluding that there had been no denial of natural justice, Gibbs [CJ] [with whom Mason J and Dawson J agreed in separate reasons, and Wilson J agreed on the question of procedural fairness (at 360-361))] concluded:

It was submitted that the appellant should have been given an opportunity to cross-examine, or at the very least, to confront, the two girls who made the complaints. In support of these submissions we were referred to Barrier Reef Broadcasting Corporation Pty. Ltd. v. Staley [(1978) 52 ALJR 493] and Reg. v. Board of Visitors of Hull Prisoners; Ex parte St. Germain ([1979] 1 WLR 1401). Those were cases in which there was a hearing before a tribunal which refused to allow the cross-examination of persons who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject-matter being dealt with: see Russell v. Duke of Norfolk ([1949] 1 All ER 109 at 118). Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses: see National Companies and Securities Commission v. News Corporation Ltd [(1984) 156 CLR 296]. Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances: (1985) 156 CLR 342 at 353.

71    While the Applicant’s submissions relied in particular on Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 (Soliman) (per Marshall, North and Flick JJ) at [25], careful attention should be given to the words Marshall, North and Flick JJ used in their Honours’ reasons for decision. Soliman indicates that there can be “some circumstances” where “it may well be the case that an administrative decision-maker may have his decision set aside where it is founded upon material from an undisclosed source” (Soliman at [25]). In this respect, Soliman referred to “some circumstances” – it did not set out an unqualified principle. In addition, in Soliman, Marshall, North and Flick JJ ultimately found that the “reliance upon the anonymous e-mail in [Soliman] worked no unfairness to [the relevant applicant]” in that case (Soliman at [26]). While the “source of the e-mail may have been unknown”, the “contents of that e-mail were largely not in dispute” (Soliman at [26]). As a result, there was no conclusion in Soliman that the source of the anonymous email be called and cross-examined.

72    Moreover, it can be accepted that a tribunal cannot, “without grave danger of injustice”, “set aside the common law rules of evidence and ‘resort to methods of inquiry which necessarily advantage one party and necessarily disadvantages the opposing party’ … ” (Soliman at [25]; citations omitted; internal quotations in the original). But that merely identifies the general risk involved in a Tribunal adopting a method of enquiry which advantages one party and disadvantages the opposing party. It does not in terms translate into an automatic requirement in an administrative tribunal that the makers of hearsay statements be called and cross-examined (in a manner, for example, akin to a curial proceeding).

73    The Applicant also submitted that reliance “upon material which cannot be tested may well constitute a denial of procedural fairness” (Soliman at [25]). However, that proposition directs attention to what is required of the Tribunal to ensure that relevant material is appropriately “tested”. That does not entail a conclusion that hearsay material must be tested by way of cross-examination of the source of hearsay statements. This is particularly so in the statutory context I have set out above.

74    The Applicant also noted that there should “be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case” (Soliman at [25]). Such a posture of reluctance necessitates a Tribunal being adequately conscious of circumstances where there is a “real dispute over a matter which goes to the heart of a case”, and alive to the types of rules of evidence which should be implemented to appropriately traverse that contest in order to discharge the Tribunal’s obligation to afford procedural fairness. It does not, however, entail an automatic or unqualified rule that cross-examination of the sources of particular statements is necessary in all cases.

75    It should also be uncontroversial that reliance “cannot be placed upon material which has no probative weight, particularly when it would be procedurally unfair to do so” (Soliman at [25]). But that statement does not equate to a proposition that hearsay evidence is, without more, of “no probative weight”. It merely directs attention to the initial step of assessing whether any hearsay material has appropriate probative value.

The content of the obligation to afford procedural fairness

76    While there is no universal requirement that cross-examination occur (as the above principles illustrate), the core of the content of the obligation to afford procedural fairness can be summarised as follows.

77    First, and as will be apparent from the matters referred to above, the rules of procedural fairness do not have an immutably fixed content (see Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 [175]-[178]; 230 FCR 82 (per Middleton and Wigney JJ) (Snedden) citing Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638 at [156]). What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision maker acts, including any statutory or regulatory requirements or considerations (see Snedden at [177] and the various High Court authorities cited there). The content of procedural fairness is flexible and adaptable to the circumstances of the particular case and must be approached on the basis of what is reasonable (Kioa v West (1985) 159 CLR 550 (Kioa) at 627) and necessary to avoid “practical injustice” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38]). What is required by procedural fairness is a fair hearing, not a fair outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25] (per Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ)).

78    Second, there is generally speaking an obligation to inform an applicant of the case against him or her and provide to the applicant a reasonable opportunity to answer it (Snedden at [175] citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]). An applicant is entitled to be made aware of, and have the opportunity to address, the critical issues or factors on which the decision is likely to turn, as well as any adverse information that is credible, relevant and significant to the decision to be made (Snedden at [175] citing Kioa at 587 (per Mason J) and 629 (per Brennan J) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [15]). Whilst a decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material, there is no obligation for the decision maker to expose mental processes or provisional views (Snedden at [176] citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (per Northrop, Miles and French JJ)).

79    These propositions are consistent with the authorities cited in the parties’ submissions. Those authorities stated that any exemption “from cross-examination upon evidence before a tribunal can be justified only if the affected party nevertheless has ‘a fair opportunity of commenting on it and of contradicting it’ …” (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247 (Re Pochi) at 41 (per Brennan J (who was sitting as the President of the AAT) citing TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 (per Lord Denning MR)). In undertaking a review, where there are interested parties to the review with conflicting positions, “there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version” (Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 (Sullivan) at [46]-[48] (per Logan J)).

Application of these principles to the facts of this case

80    Given these principles, the question becomes whether they were adhered to in the course of the Applicant’s hearing. An objective reading of the proceeding in the Tribunal indicates the Tribunal complied with those principles for the following reasons.

81    First, the Minister placed the Applicant’s past criminal conduct squarely in issue before the Tribunal. The Relevant Documents indicate that the Minister provided to the Tribunal on or around 24 October 2019 a “Statement of Issues, Facts and Contentions”. That statement, filed before the Tribunal hearing, referred to the Applicant’s criminal history including that which was contained in the documents produced by the summonses directed to Victoria and Queensland Police and the three Police Summaries. As a result, the Applicant’s legal representatives before the Tribunal were on notice as to the case that was being made against the Applicant by the Minister before the Tribunal.

82    Second, the Police Summaries were provided to the Tribunal without any objection. On 4 June 2020, the Applicant’s solicitor filed an unsworn affidavit which annexed a copy of the transcript of the Tribunal’s hearing of this matter on 31 October 2019 (the Transcript). (I presume the affidavit may have been unsworn due to reasons associated with COVID-19.) The parties’ submissions referred to the Transcript. The Transcript records that, at the beginning of the Tribunal hearing, the Police Summaries were “tendered” as part of the “G Documents”. The Applicant’s legal representatives in the Tribunal did not at that time (or, as far as I can tell, at any other time) object to the Tribunal receiving and considering those Police Summaries.

83    Third, it is clear that “due notice” (Sullivan at [46]-[48] (per Logan J)) of the Police Summaries was given to the Applicant: prior to the hearing before the Tribunal, the Applicant’s legal representatives had access to the documents that were produced under summons which included the three Police Summaries. Those representatives were therefore on notice of the nature and content of those documents. It was also open to the Applicant to write to the Minister’s solicitors and seek from the Minister the identities of relevant police officers that could provide evidence concerning the Police Summaries. If the Minister’s solicitors were uncooperative in that regard, the Applicant may have sought the assistance of the Tribunal. The Relevant Documents indicate that was not done and there might well be quite legitimate forensic reasons why that is so.

84    Fourth, the Applicant’s solicitors made closing submissions in the Tribunal hearing. It was open to the Applicant at that stage to further address the matters referred to in the Police Summaries. It appears that course was not taken and that approach may have been pursued on reasonable bases directed towards the presentation of the Applicant’s case in the Tribunal.

85    Fifth, there was no obligation on the Minister to produce the relevant police officers for cross-examination. Those police officers were the makers of the statements contained in the three Police Summaries. The Minister was not required to produce these officers in circumstances where the Applicant’s legal representatives before the Tribunal did not object to the tender of the three Police Summaries. In any event, the Applicant’s legal representatives did not request the attendance of the police officers at the hearing before the Tribunal, or otherwise write to the Minister’s solicitor to enquire about those officers’ identities. If the Minister’s solicitors were uncooperative in this regard, again, it would have been open to the Applicant to seek the assistance of the Tribunal concerning that aspect. There was no evidence presented to this Court that the Applicant did so.

86    Sixth, and importantly, the Applicant was taken to each of the Police Summaries in the course of cross-examination. The Applicant was given ample opportunity to comment upon them. The Transcript records that the Minister’s solicitor indicated to the Tribunal that certain material was provided to the Tribunal, namely a “bundle from Victoria Police” and a “bundle from the Queensland Police” that was “produced under summons” (Transcript at 44). The Transcript indicates those documents were put to the Applicant during cross-examination in the Tribunal.

87    There are several examples which adequately establish this position. By way of illustration, at 48 of the Transcript, the Minister’s solicitor stated in relation to certain police records that the solicitor was putting them to the Applicant “out of fairness because they’re not convictions that appear on [the Applicant’s] criminal record”.

88    Page 80 of the Transcript also records the following:

Yes, I just want to ask you about a few of the facts of that. So this is the copy of material from the Queensland Police which we put before the tribunal – [it] was produced under summons and this is a court brief. It describes the defendant and victim. The victim conducts property inspections and related property management duties. This is in the fact section and it indicates that the offence occurred on 9 April 2010. Moving down the page, the tenants advised that the house was still untidy. So these were the tenants that you referred to that you – were … renting the property to them or … friends of theirs?

89    Based on the Applicant’s submissions, this appears to be a reference to the First Police Summary. The Minister’s solicitor then proceeded to ask the Applicant questions about matters relating to that document. The Applicant was given an opportunity to answer questions about the matters put to him in relation to it. The Tribunal member asked certain questions as well.

90    Pages 82 to 83 of the Transcript provides an example of the relevant types of exchanges between the cross-examiner and the Applicant:

[Cross-examiner]: The final fact that I want to ask you about was the next line, “Once outside the dwelling” you[,] it records here, said to the victim, “If you come back here I'll punch your face in”. Did you say that?

[Applicant:] Absolutely not …

[Cross-examiner]: You weren't convicted but you were fined in relation to this offence, so you continued to deny most of the facts in this court brief here that I've just described, didn't you?

[Applicant:] No, I think the facts – the main facts … – I agree with. The rhetoric I disagree with. …

[Cross-examiner:] I suggest to you that this offence was also [a] situation where you have escalated and used physical force against somebody where it could have been dealt with in an alternative way. Do you accept that?

[Applicant:] Yes.

[Cross-examiner:] And both of those [relevant people] – the victim and her assistant [–] were both women, is that right?

[Applicant:] Yes, they were both women.

91    At page 85 of the Transcript, the Applicant was taken to another “police record” relating to what were said to be “obtain financial advantage, obtain property by deception and then two attempt charges”. The cross-examiner asked the Applicant whether this “offending occurred on 9 March 1994” and the Applicant confirmed that date was correct. The cross-examiner then asked the Applicant to describe what happened on that date. Pages 86 to 87 of the Transcript record the Applicant being taken to a police report concerning this incident and, in short, the Applicant providing the Applicant’s version of events. Based on the Applicant’s submissions, it appears these pages of the Transcript related to the Second Police Summary. The Transcript at 87-88 then records the following exchange:

[Tribunal Member:]: So, does that refresh your memory, the police summary there?

[Applicant:] Not exactly – no – not completely …

[Cross-examiner]: It seems to me that there was an attempt [by the Applicant] to return [certain] camcorders [to a vendor] … to receive [a] financial benefit [and the Applicant] paid for them with money that [the Applicant] never had[?]

[Applicant:] I think that's what they were claiming … I think that's what they were claiming, which – even looking at that, and reading that now, it still doesn't make a lot of sense to me, no, but I think that's what the claim was.

[Tribunal member]: Well, that's what the conviction was?

[Applicant:] Whether that – well, what the conviction was but then if – if I owed three and a half thousand dollars, why did they let me buy the cameras on the [relevant promotional] card.

[Cross-examiner:] In any event, you were convicted of obtain[ing] property by deception?

[Applicant:] Anyway, yes.

[Cross-examiner:] And obtain[ing] financial advantage by deception and two attempt charges?

[Applicant:] Yes. Well, I obviously did something not right.

[Cross-examiner:] Yes. Well, the court viewed it quite seriously because you were sentenced to two months' imprisonment on each charge, a concurrent sentence, so two lots of – so, four lots of two months' imprisonment on each charge … ?

[Applicant:] Four months, I thought it was two charges?

[Cross-examiner:] Two – one obtain property, one obtain financial advantage and two attempt charges, I read that as four charges?

[Applicant:] Okay.

92    Page 99 of the Transcript records the cross-examiner then taking the Applicant to a further “police record”. Based on the Applicant’s submissions, it appears this relates to the Third Police Summary. The Transcript records the following (at 99-105):

[Cross-examiner:] The police record that this appears to relate to – I'll get you to turn to these again … This is the obtain property by deception, report date 2 August 2001; can you see that one?

[Applicant:] Yes, March 2000, two accounts?

…

[Cross-examiner]: This is two accounts opened at ANZ bank in the names of you and EMA Group, which is your company; is that right?

[Applicant:] Yes.

[Cross-examiner:] Yes. And that was during the period 26 April 2000 and 3 October 2000. Valueless cheques were continually deposited into these accounts and drawn cheques were dishonoured to the value of $54,700. Is that the offence that we're talking about, the one that you say is in the year 2000?

[Applicant:] … I believe that's the offence but that figure is totally incorrect.

[Cross-examiner:] Certainly, so we’ll go through the facts of that now …

[Cross-examiner:] Okay. Well, what's your version of events in relation to this offence? …

[The Applicant provided a response]

[Cross-examiner:] You accept that that's the offence that resulted in a court date of 16 December 2004?

[Applicant:] Yes.

…

[Cross-examiner]: In relation to this offence, I would suggest to you, I put this to you out of fairness[:] … given your history of extremely similar crimes, that you did commit these offences yourself in the way that was described by police?

[Applicant:] How could I if I was – well, … It would have been incredibly difficult for me to do it when I wasn't in the country.

[Cross-examiner:] Well … the Member described your travel history, 26 September to 5 October and the police records say that the cheques were deposited between 26 April and 3 October?

[Applicant:] Yes, but that's actually not what I was charged for not where the theft came from.

[Cross-examiner:] Well, this is the police record?

[Applicant:] Yes, well, they've just got it that wrong. It came from two cheques, those two cheques and, at the end of the day – but regardless I'm guilty of it because the court says I'm guilty of it.

[Cross-examiner:] Did you plead guilty?

[Applicant:] Yes, I did …

93    At page 107 of the Transcript, a further police record was put to the Applicant and the Applicant was asked whether the Applicant agreed with “the summary of the charge”. The Applicant’s response was “Yes, I agree with that”. Page 112 of the Transcript records a further “police record” being put to the Applicant and the Applicant was cross-examined concerning his version of the events referred to in that record.

94    In these circumstances, the three Police Summaries were admitted into evidence before the Tribunal. Once admitted into evidence, the issue for the Tribunal was the weight attached to the police summaries. That was a matter for the Tribunal to determine. It is apparent from a reading of the Tribunal’s Reasons that the Tribunal weighed the evidence of the Applicant and the contents of the Police Summaries. The Tribunal found that it preferred the content of the Police Summaries to the Applicant’s recollection which it described as “somewhat selective” and the Tribunal was “not persuaded” by the Applicant’s “less complete explanation of events” (Tribunal’s Reasons at [104], [105] and [106]).

Summary concerning the procedural fairness afforded

95    For these reasons, and as the extracts above adequately illustrate, the Applicant was given “a fair opportunity of commenting on the [Police Summaries] and of contradicting” them (Re Pochi at 41 citing TA Miller Ltd v Minister of Housing and Local Government [1968] I WLR 992, Lord Denning MR at 995). In this respect, the Applicant was taken to each of the Police Summaries. Where the Applicant disagreed with matters referred to in the Police Summaries, the Applicant was given an opportunity to be heard, and was heard, in relation to those summaries. On a number of occasions, issues in the Applicant’s versions of events were put to the Applicant or it was expressly put to the Applicant that those versions of events were inconsistent with the Police Summaries. On several occasions, the Applicant expressed his disagreement with such propositions.

96    Given the matters I have set out above, it should not be accepted that the Police Summaries could not be tested by the Applicant, that the substance of the Police Summaries were not adequately put to the Applicant, that the Applicant did not have an adequate opportunity to comment on them, or that it was not properly put to the Applicant that the Applicant’s versions of events were inaccurate. As a result, for the reasons I have referred to, the Applicant was not denied procedural fairness in the manner advanced in ground 1 by the Applicant.

Disposition of ground 1

97    For the above reasons, ground 1 must be rejected.

Ground 3

98    By ground 3, the Applicant alleges that the Tribunal’s finding at [110], [114] and [142] of the Tribunal’s Reasons (to the effect that the Applicant is a “real” risk of sexual reoffending) is irrational, illogical or unreasonable.

Applicant’s submissions on ground 3

99    The Applicant made a number of submissions. First, it was said that, there was no probative basis for the finding that the Applicant had a “real” risk of sexual recidivism. Second, the Applicant contended that the sentencing judge in the County Court did not make any findings of fact about the risk of any claim of recidivism. Third, the Applicant submitted that the Applicant was extensively cross-examined in the Tribunal hearing about events leading up to the offence and the offence itself but it was never put to the Applicant that he had a sexually predatory disposition. Fourth, the Applicant said that the Minister at the Tribunal hearing did not put on any positive evidence of the Applicant’s risk of sexual reoffending. The Applicant also submitted that the Tribunal failed to take into account the opinion of a forensic psychologist, Dr Karen Scally, who indicated that the Applicant was a low risk of sexual reoffending. Dr Scally concluded in her opinion that the Applicant was in the low risk category both in regard to recidivism risk for general offences and sexual offences and that there was no clear indication of any inflated risk posed by the Applicant to the Australian community.

100    The Applicant submitted that in these circumstances there was no probative evidence before the Tribunal which could logically and rationally support the Tribunal’s finding that the Applicant had a “real” risk of sexual recidivism.

Minister’s submissions on ground 3

101    The Minister made five main submissions in opposition to the Applicant’s position. First, the Minister submitted that the Tribunal’s Reasons (at [110]) reveal that the Tribunal evaluated the Applicant’s “obstinate refusal” to accept the verdict of the jury in respect of the rape, as confirmed by the Victorian Court of Appeal (see Bullmore v The Queen [2017] VSCA 41), which the Tribunal observed contributed towards a finding that “there is some risk” of sexual recidivism and that the risk is “real”.

102    Second, the Minister said that the Tribunal determined that the Applicant had a complete lack of acceptance of his serious sexual offending and a less than complete acceptance of many of his convictions for crimes of dishonesty.

103    Third, the Minister stated that these matters together provided a basis upon which the Tribunal could be satisfied that the primary consideration of protecting the Australian community weighed against the revocation of the cancellation of the Applicant’s visa when there is a real likelihood of the Applicant engaging in further criminal conduct (Tribunal’s Reasons at [114]).

104    Fourth, the Minister said that the Tribunal was required to conduct an assessment of the risk of sexual recidivism by the Applicant and there was no error demonstrated in the way in which the Tribunal approached the task of assessing the Applicant’s risk of sexual reoffending.

105    Fifth, the Minister submitted that the Tribunal’s finding at [110], [114] and [142] of the Tribunal’s Reasons (that the Applicant poses a “real” risk of sexual reoffending) was open to the Tribunal to find and there was nothing irrational, illogical or unreasonable in the assessment made by the Tribunal.

Consideration and disposition of ground 3

The applicable test

106    It is first necessary to set out the test to be applied. It can be summarised as follows.

107    First, “ … ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came … is one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 per Crennan and Bell JJ at [130] (SZMDS)).

108    Second, the “the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based” (SZMDS at [131]). However, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (SZMDS at [131]). In this respect, not “every lapse in logic will give rise to jurisdictional error” and a “court should be slow, although not unwilling, to interfere in an appropriate case” (ibid).

109    Third, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality should typically be shown (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] (per Griffiths, Perry and Bromwich JJ) and the authorities cited there). Whether “extreme” illogicality has arisen is to be assessed by reference to the standard that it is not enough for the question of fact to be one upon which reasonable minds may come to different conclusions, and by reference to the relevant framework of inquiry being whether or not there has been jurisdictional error on the part of the Tribunal (ibid).

110    Fourth, a “decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn” (SZMDS at [135]).

The process of reasoning disclosed in the Tribunal’s Reasons

111    In these circumstances, it is necessary to assess the Tribunal’s relevant process of reasoning. The paragraphs which the Applicant challenges are [110], [114] and [142]. The following extracts of paragraphs [109]-[114] and [142] of the Tribunal’s Reasons provide those paragraphs and their context:

109.    During the hearing, the Tribunal explained to the Applicant that an assessment of his risk of re-offending entailed the Tribunal measuring the risk of him re-offending in any manner, not limited to sexual offending, and [the Applicant] said he understood this.

110.    In terms of the risk of [the Applicant] re-offending in committing a serious crime of a sexual nature, the Tribunal is not convinced that such a risk is high. There was no history of such offending before 2008, or in the relatively long period after the rape incident and the trial and conviction. However, what I can only describe as an obstinate refusal to accept the verdict of the jury, as confirmed by the Court of Appeal, contributes to my finding that there is some risk, and it is a real risk, that such a crime may again be committed by [the Applicant]. When given the opportunity, there was no evidence from his very general answers in response to specific questions that he had learnt anything about the importance of establishing consent in sexual encounters, in spite of saying he had undertaken the course for sex offenders in prison.

    …

112.    In terms of the rape conviction, this was not a case where an Applicant sought to present matters which may surround the circumstances of a conviction in order to provide some added context, which he may do provided none of those submissions have the effect of contradicting the findings of the Court (see Davies J, then President of the Tribunal, in Re: Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143). On the contrary, in his written and oral evidence, [the Applicant] resolutely denied all of the core elements of the rape conviction, which founded the jury’s verdict and the subsequent sentencing, noting that the core elements founding the offence were upheld on appeal by the Court of Appeal.

    …

114.    The complete lack of [the Applicant]’s acceptance of the serious sexual offending and the less than complete acceptance of many of his convictions for crimes of dishonesty together unite to satisfy the Tribunal that this primary consideration weighs against the revocation of the mandatory cancellation of the visa. To borrow the wording in [Direction 79], I find that there is a real likelihood of him engaging in further criminal or other serious conduct.

…

142.    The Tribunal couples [the Applicant]’s continuing resolute denial at this hearing of the serious offence which precipitated the cancellation of his visa, after several years of being able to reflect on his sentence, with his denial of many aspects of his other offending in coming to the finding that the risk of the Applicant re-offending is not remote or fanciful. The Tribunal’s findings on the seriousness of the offending and the assessment of risk of re-offending outweigh the Tribunal’s conclusions on the best interests of minor children affected by the decision and the strength, nature and duration of the Applicant’s ties with Australia and the extent of impediments if he is removed.

112    In this respect, the Tribunal correctly identified that it should conduct an “assessment” of the Applicant’s “risk of re-offending” (Tribunal’s Reasons at [109]). This reflects Direction 79’s requirement that decision makers “must have regard to” the “nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct” (Direction 79, [13.1.2(a)]). It also reflects Direction 79’s requirement that decision makers consider 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” (Direction 79, [13.1.2(b]).

113    The Tribunal’s conclusions concerning these considerations can be summarised as follows. First, the Tribunal concluded that “there is some risk, and it is a real risk,” that the relevant “crime may again be committed” by the Applicant (the Criminality Conclusion). Second, the Tribunal found that, in “terms of crimes of dishonesty, the Tribunal assesses the risk” of the Applicant “re-offending as relatively high” (the Dishonesty Conclusion). Third, it is apparent that these two integers together satisfied the Tribunal “that there is a real likelihood” of the Applicant “engaging in further criminal or other serious conduct” (the Ultimate Conclusion).

The test applied to the Tribunal’s relevant process of reasoning

114    The Applicant’s ground 3 challenged the Criminality Conclusion, not the Dishonesty Conclusion. The logic of the Criminality Conclusion was predominantly set out in [110], [112] and [142] of the Tribunal’s Reasons (extracted above). That logic proceeded in a manner akin to the following.

115    First, the Tribunal’s correct starting point was that the Applicant’s relevant “conviction and sentence must be conclusive” (the Tribunal cited Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 (per Branson, Lindgren and Emmett JJ) at [45]-[46]).

116    In this context, the Tribunal’s major premise was that, if a person obstinately refuses to accept a guilty verdict of a jury (which the Tribunal was required to consider as conclusive) concerning a sexual offence (when that verdict has been reviewed and confirmed by a Court of Appeal), and there is no indication that person has “learnt anything” about the importance of “establishing consent in sexual encounters”, that person exhibits “some”, “real risk” that the person will recommit the relevant crime (Tribunal’s Reasons at [110]).

117    Second, the minor premise was that the Applicant had exhibited such a stubborn refusal and there was limited evidence that the Applicant had “learnt anything about the importance of establishing consent in sexual encounters”.

118    The Tribunal therefore reasoned that the Applicant should be placed into the category of persons that exhibit “some”, “real risk” of re-committing the relevant crime (Tribunal Reasons at [110]).

119    Once that logic is exposed, it should be apparent that there is no problematic logical invalidity in that process of reasoning: it should not be accepted that no rational or logical decision maker could reason in that manner. As a result, two questions arise. First, an assessment is needed as to whether the major premise adequately accords with the relevant statutory materials. Second, the minor premise must be adequately supported by the evidence before the Tribunal.

The Tribunal’s reasoning was adequately supported by the relevant statutory foundation

120    As to the first of these questions, the major premise concerned a convicted person’s attitude towards the relevant conviction and whether that person had learnt anything about the relevant crime. The Applicant did not contend in this Court that such a matter was an irrelevant consideration or that it was extraneous to the text of Direction 79.

121    In this regard, Direction 79 mandates that, informed by the principles set out in Direction 79, decision makers “must take into account” the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked (Direction 79, [7]). The Tribunal was required to take into account “available information” in order to assess the “likelihood” of the Applicant “engaging in further criminal or other serious conduct” (Direction 79, [13.1.2]).

122    In conducting this assessment, the Applicant’s attitude towards the Applicant’s relevant conviction evidently became apparent to the Tribunal, as did the Applicant’s insight and learning concerning the relevant crime. Consideration of those matters falls within the text of Direction 79. Five matters suffice to establish that proposition.

123    First, Direction 79 dictates that decision makers should have regard to the principle that the Australian Government “is committed to protecting the Australian community from harm as a result” of non-citizens’ “criminal activity or other serious conduct” such as “activities indicating contempt or disregard for the law” (Direction 79, 13.1(1) and definition of “serious conduct”; emphasis added). This text encompasses a non-citizen showing a resolute refusal to accept the verdict of a jury and the independent assessment of that verdict by a Court of Appeal (which, as I have stated above, the Tribunal could not go behind), or a non-citizen exhibiting a failure to adequately learn about the conduct required to avoid re-committing that offence. Such conduct falls within, for example, the category of a “disregard for the law” referred to in Direction 79: it entails a failure to adequately regard important prohibitions in Australian criminal provisions and the process by which they are enforced.

124    Second, Direction 79 directs that remaining “in Australia is a privilege that Australia confers on non-citizens in the expectation that they … will respect important institutions” (Direction 79, 13.1(1); emphasis added). The phrase “important institutions” in this context encompasses the criminal justice system and the verdicts it renders. Direction 79’s reference to the expectation that there be proper respect for such institutions provides a further statutory basis for the Tribunal taking particular account of the Applicant’s attitude towards the relevant conviction, which includes the Applicant’s capacity to reflect on the relevant conduct or demonstrate an appreciation for the conduct required to comply with the relevant criminal provisions previously contravened.

125    Third, such a capacity accorded with Direction 79 given that direction required that the Applicant’s offence be viewed “very seriously” and in light of the “principle that crimes of a violent nature against women … are [also] viewed very seriously, regardless of the sentence imposed” (Direction 79, 13.1.1(1)). Indeed, crimes “of a violent or sexual nature”, “particularly against women”, are so serious that non-citizens who have committed such a crime “should generally expect” to “forfeit the privilege of staying in … Australia” (Direction 79, [6.3(3)]). As a result, and in circumstances where it was not for the Tribunal to go behind the relevant conviction, it was open to the Tribunal to assess whether the Applicant’s attitude towards the offence adequately accorded with the position expressed in Direction 79 to the effect that such offences are to be considered as particularly grave.

126    Fourth, Direction 79 requires decision makers to assess the “likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information” (Direction 79, [13.1.2]). The matters referred to above were “available information”. It was open to the Tribunal to take them into account in making this assessment of likelihood. It was for the Tribunal to make that assessment in a manner which was not illogical, irrational or unreasonable.

127    Fifth, it was of course open to the Applicant to maintain his innocence in relation to the relevant conviction. However, maintaining that position had attendant risks which were present from the outset of the proceeding in the Tribunal. In particular, a position of professed innocence had to confront the principle that the relevant conviction and sentence were “conclusive” (SRT at [46]). If the Tribunal adopted the approach that “it need not accept the essential factual findings” made by the relevant sentencing judge, the Tribunal would have risked erring in law (SRT at [48]).

128    As a result, the Applicant maintaining such innocence in the Tribunal raised a question as to whether or how the Applicant might seek to discharge a certain heavy burden. If that course was taken, it presumably might have been directed towards discharging the challenging burden of persuading the Tribunal that the relevant conviction was affected by a factor which ensured there was reason to doubt the integrity of the criminal process by which the Applicant was convicted and sentenced. It may have alternatively entailed attempting to provide a compelling explanation as to why a particular factual foundation should not be accepted. Elements of the Applicant’s evidence in the Tribunal perhaps resembled that course.

129    As matters transpired, however, the Applicant maintained that position of innocence and did not discharge any such burden. In the face of the Tribunal having to accept the relevant conviction as conclusive, the Applicant’s professed innocence persuaded the Tribunal that the Applicant failed to properly appreciate the consequences of his conduct which was and is prohibited by criminal law and was enforced by way of (among other things) the Applicant’s conviction and sentence. Such a failure raised the risk that the Applicant would be found to have exhibited a disregard for the law and a certain disrespect for the important institutions of Australian criminal law (Direction 79, 13.1(1)). Those institutions are directed towards the “protection of society”, “deterrence of the offender”, deterrence “of others who might be tempted to offend”, together with “retribution and reform” (Veen v The Queen [No 2] [1988] HCA 1; 164 CLR 465 at 476-477 (per Mason CJ, Brennan, Dawson and Toohey JJ)). Such matters fall squarely within Direction 79’s objective of “protecting the Australian community from harm as a result of criminal activity or other serious conduct” (Direction 79, [6.2(1)]).

130    For these reasons, the Tribunal’s major premise was adequately connected to the terms of Direction 79. The Tribunal did not stray outside the boundaries of the statutory test in considering the matters it did.

The Tribunal’s reasoning was adequately supported by the evidence before the Tribunal

131    The question therefore becomes whether there was adequate evidence to support the Tribunal’s contention that the Applicant stubbornly refused to accept the relevant guilty verdict, or that the Applicant had not learnt anything “about the importance of establishing consent in sexual encounters”. In short, there was such evidence. Relevant examples included the following.

132    First, the Tribunal had before it the Applicant’s statutory declaration dated 15 February 2018 (Statutory Declaration). The Statutory Declaration was declared approximately 11 months after the Victorian Court of Appeal stated in respect of the Applicant’s case that that Court had “carried out [its] own independent assessment of the evidence” and concluded that “it was well open to the jury to be satisfied beyond reasonable doubt of the [Applicant’s] guilt” and, as a result, the verdict was not “unsafe” or “unsatisfactory” (Bullmore v The Queen [2017] VSCA 41 at [63]-[64]).

133    Notwithstanding that judgment, the Applicant’s Statutory Declaration recorded (among other things) that the Applicant “pleaded not guilty” to the relevant charges and the Applicant “still maintain[s] my [ie the Applicant’s] innocence” (Statutory Declaration at [48]-[50]). The Applicant stated that the Applicant harboured “no ill feelings towards” the relevant complainant and that the Applicant “did not do” what the relevant complainant claimed (ibid). The Applicant stated that the relevant matter was “a complete fabrication”, which either the relevant complainant was said to be “aware she is lying about, or … she imagined” (ibid).

134    Second, matters related to the conviction were put to the Applicant during cross-examination. By way of example, the Transcript records the following exchanges:

[Cross-examiner:] The Court of Appeal found that [a certain] aspect of the [relevant] complainant’s account was internally consistent and coherent. Do you accept the Court of Appeal found that first of all?

[Applicant:] According to this they did. I don’t know what they will accept and they didn’t accept, to be honest. I know they didn’t listen to too much. I recall … thinking well they’re not even listening to the evidence and they didn’t seem to be.

[Tribunal]: … [J]ust listen carefully because [the cross-examiner] is only asking you, do you accept that the court found that?

[Applicant:] It's written here, so I guess I accept it.

…

[Cross-examiner]: … Moving on to the next … point which is throughout the assault [the relevant complainant] was physically pinned down by the [Applicant.] You deny that as well?

[Applicant:] I deny that, yes.

[Cross-examiner:] Yes. And as a consequence of being pinned down she was unable to push you off despite trying to do so. You deny that?

[Applicant:] Yes, I do.

[Cross-examiner:] You deny that the assault lasted 10 minutes in total?

[Applicant:] I deny there was any assault.

…

[Tribunal member:] I'm really just teasing out[:] you didn't think there was anything obviously unsatisfactory about the process of the trial, putting aside the verdict that was returned?

[Applicant:] No, I didn't – I didn't think there was anything terribly unsatisfactory with the trial at the time.

…

[Tribunal member]: … If you accept responsibility for an offence, then the corollary is that you're in a certain situation as a person who has been convicted of the offence. It seems to me … that you're saying I accept that I'm in a situation where I've been convicted of an offence, but I don't accept necessarily the elements of the offence. Am I understanding you properly?

[Applicant:] Kind of, but I don't accept certain elements of some of the offences, but I accept that if I [had of] done things differently in my life, then I would never have put myself in the situation to be charged for any of it. So it's all my responsibility. It's all my fault.

…

[Cross-examiner:] In the case of the rape conviction, you don’t accept any aspect of the rape[;] how can you say you accept certain aspects in that example?

[Applicant:] Because like I said before, I accept the fact that I should never have put myself in that position in the first place.

[Cross-examiner:] That's not part of the rape offence, it's penetrating someone with intent and without their consent. You don't accept any - - -?

[Applicant:] I don't accept – I don't accept that part of it, I don't accept that I did the offence, no. But I'll accept responsibility for myself in that situation, yes. I think you can accept responsibility for putting yourself in a bad situation and still not be guilty of the actual crime.

…

[Cross-examiner]: [the cross-examiner put to the Applicant that a doctor’s report recorded that the Applicant] denied any significant sexually deviant behaviours, but noted a high sex drive, preferring to have sex up to 10 times per day, and masturbating two to six times per day.

[Applicant:] I have been known to do that in the past, yes.

[Cross-examiner:] That would seem to be what Dr Sullivan is referring to?

[Applicant:] Yes.

[Cross-examiner:] … Do you have any opinion on whether that contributed to the [Applicant’s] offending?

[Applicant:] Well, I don't believe it did because … I didn't do what … [the relevant complainant] says that I did. Yes, so, no, I don't – I don't think that that actually did contribute.

135    The Applicant’s denials of the offence (which the Tribunal could not go behind) are self-evident in these passages.

136    As to evidence of what the Applicant might have learnt about the importance of consent, the following exchanges recorded in the Transcript illustrate the Applicant’s position:

[Cross-examiner]: Thank you. I want to ask you about your time in prison and the courses that you have undertaken … What courses did you do in terms of rehabilitation courses to address offending behaviour?

[Applicant:] Well I obviously did the one that I was required to do, which was the SOPs, I think it’s called; the sexual offenders program. I was only required to do a low-risk one, or something of that nature. So that only went for 12 weeks I think from memory – yes, because it was a low-risk one. I think the high-risk goes for six months or something like that. So I did that, but I did a bunch of other things that weren’t directly associated with offending. I offered to do anything that I could do.

…

[Cross-examiner:] What did you learn in that program?

[Applicant:] I learnt quite a bit actually. Look, I – I learned – 12 weeks, it was a fairly extensive program, and they go into everyone’s offending and all the processes and things like that, so that takes up a lot of the program. But they just – it’s just about perspective. A lot of it – sadly I was in with also some child offenders, so a lot of it sort of applied to some of that, which didn’t apply to me, but just about what is considered to be consent and not consent, and just the way the world is going, and the respectful ways to look at things. I think it was a good program.

…

[Cross-examiner:] you had denied that you had committed the rape offence. How did you feel about having to be in a program that was designed to target sexual offences?

[Applicant:] I found it interesting.

…

[Cross-examiner:] Have you taken any steps whilst you've been in detention to arrange any further psychological or psychiatric treatment?

[Applicant:] No, because I have no idea where I'm going to be. I don't know if I'm going to be in Australia or England.

137    In these circumstances, it was open to the Tribunal to find that there was limited evidence that the Applicant had reflected adequately on the importance of consent. This appears to have been a consequence of the Applicant’s denial that any sexual offence had occurred – a position contrary to the relevant guilty verdict which the Tribunal was required to accept.

The Applicant’s submission that there was inadequate evidence

138    Despite these matters, the Applicant sought to sidestep addressing the reasoning process of the Tribunal member. The Applicant contended that there was no evidence to support the Tribunal’s Criminality Conclusion because it was not put to the Applicant that he had a sexually predatory disposition and it was said that the Minister did not put on any positive evidence as to the Applicant’s risk of sexual re-offending. Such a submission is not directed to the reasoning process which the Applicant seeks to impugn – given the Criminality Conclusion was largely based on the Applicant’s refusal to accept the relevant guilty verdict and the limited evidence concerning whether the Applicant had learnt about matters relating to relevant consent. I have set out above why such a conclusion was supported by the relevant statute and the evidence. In these circumstances, the Applicant’s submission in this regard should not be accepted.

139    In addition, the Applicant argued in essence that the Tribunal should have had more regard to medical evidence which was before the Tribunal or that, in light of that evidence, the Tribunal’s conclusion concerning the risk posed by the Applicant was against the weight of the evidence. No authority was cited by the Applicant in support of that type of proposition.

140    Indeed, it was a difficult proposition for the Applicant to establish: a decision being “against the evidence” or “against the weight of the evidence” belong “to appeals from courts of law and have particular application to jury verdicts” (Collins v Minister for Immigration & Ethnic Affairs (1981) 4 ALD 198 at 201; 36 ALR 598 (per Fox, Deane and Morling JJ) (Collins)). Even in that context, “they do not involve questions of law” (ibid). They “have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses” (ibid). An applicant “who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based” (ibid; emphasis added). For the reasons I have set out earlier in these reasons, this proceeding does not fall into that category of cases.

141    However, even if there was doubt concerning whether the Tribunal properly considered the medical evidence before it, the Tribunal’s Reasons disclose that the Tribunal’s relevant conclusion was based on an assessment that the Tribunal made after considering the Applicant’s evidence in response to the report of Dr Scally. The Tribunal’s Reasons referred to the following:

70.    The [Minister] took [the Applicant] to a report by Dr Karen Scally, forensic psychologist, who examined him on 26 February 2019 … [The Applicant] was asked whether he agreed with the following remark Dr Scally made …:

In both his affidavit and throughout interview [the Applicant] demonstrated a tendency to engage in minimisation of his past offending behaviour. He continues to maintain his innocence in respect to the rape conviction and has fallen short of accepting total responsibility for his actions with regards [sic] to other past convictions.

He has communicated regret for some of his actions which led to charges being laid against him but denies any criminal intent with respect to the range of past offences.

He has shown a tendency to blame others and provide excuses rather than admitting full responsibility for his actions.

[The Applicant] has expressed partial guilt for the theft by deception charges for which he was convicted but again qualified this admission of guilt by maintaining a lack of criminal intent in his actions.

71.    [The Applicant] said ‘if that is her view, I’m not going to disagree. I agree regarding the rape, but I do accept total responsibility, but not to certain aspects.’ The Applicant said he agreed there was no criminal intent in regard to the significant theft charges for which he was convicted in 1996, because he did not intend to steal his clients’ money.

72.    The [Minister] asked [the Applicant] whether he agreed with Dr Scally’s observation that he had shown a tendency to blame others and responded: ‘I have been guilty in the past of not fully appreciating other people’s perspectives. I don’t agree with her conclusion in relation to my offending. Some I wasn’t guilty of, even ones I accept total responsibility for, because I didn’t do it.’

73.    When asked whether he accepted any aspect of the circumstances leading to the rape conviction, [the Applicant] said ‘I accept that I shouldn’t have found myself in a bad situation.’

…

75.    The [Minister] asked whether [the Applicant] agreed with the following observation of Dr Scally …:

[The Applicant] expresses some remorse for his past offences but falls short of accepting full responsibility for his actions. He espouses a prosocial attitude and denounces any criminal intention. However, it is questionable whether he has truly changed in his attitude to committing unlawful acts given his unwillingness to provide a complete admission to his past offences.

The Applicant said he did not agree with this conclusion. (Emphasis added; citations omitted.)

142    The substance of Dr Scally’s report (as referred to above by the Tribunal), together with the Applicant’s evidence that he did not agree with the conclusion expressed by Dr Scally (as set out in the Tribunal’s Reasons at [75]), provided a further basis for finding that there exists a real risk of sexual reoffending by the Applicant albeit the Tribunal found that such risk was not high.

The Tribunal’s reasoning was within power

143    For these reasons, the Tribunal’s reasoning process was adequate. The Applicant has not demonstrated jurisdictional error in the Tribunal’s finding that there was some risk of sexual recidivism and that the risk is real (Tribunal’s Reasons at [110], [114] and [142]). This is particularly so given the matters I have set out above and given “… ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came … is one at which no rational or logical decision maker could arrive on the same evidence”, and a “court should be slow, although not unwilling, to interfere in an appropriate case” (SZMDS at [130]; emphasis added).

144    As a result, I do not accept the Applicant’s submission that there was no probative basis for the finding that the Applicant had a “real” risk of sexual recidivism.

Disposition of ground 3

145    Ground 3 of the application fails.

THE Non-publication order SOUGHT BY THE APPLICANT

146    The Applicant also sought a non-publication order pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth) (FCA) preventing publication of the Applicant’s name.

147    In support of this position, the Applicant submitted that the Tribunal made an order assigning the Applicant a pseudonym and that the same course should be adopted in this Court. The Applicant contended that a non-publication order should be made because this Court has recognised that it should “act conformably” with another court in which a party’s identity has been suppressed. The Applicant cited ACW v Du Bray [2019] FCA 1075 at [48] to [51] (per Wigney J) as the basis for that proposition.

148    That authority concerned “[j]udicial comity” and the Federal Court acting conformably with another Court. However, the Tribunal is of course an administrative decision maker, not a court. The Applicant’s submissions did not address on what basis any comity between courts should be extended to administrative tribunals as well. In these circumstances, the Applicant’s submissions did not provide an adequate foundation for a non-publication order. In addition, there are fundamental differences between the Tribunal and this Court (see Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217; 130 FCR 435 at [30]-[31] per Merkel J (Finn and Stone JJ agreeing)).

149    The Minister opposes the non-publication order on the basis that the Applicant has not produced any evidence in support of the proposition that it is necessary to make such an order to prevent prejudice to the proper administration of justice (see Chen v Migration Agents Registration Authority (No. 1) [2016] FCA 649 at [14]). Certain matters addressed in this judgment and related to the Applicant are also published in Bullmore v The Queen [2017] VSCA 41.

150    I am not persuaded in these circumstances that any of the grounds in s 37AG of the FCA have been established. I am not satisfied in particular that such an order is necessary to prevent prejudice to the proper administration of justice. I will not make the non-publication order sought by the Applicant.

Disposition

151    The application is dismissed with costs.

Associate:

Dated:    6 August 2020