FEDERAL COURT OF AUSTRALIA

WKMZ v Minister for Home Affairs [2020] FCA 1127

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Background

1    The applicant seeks judicial review of a decision of the second respondent (the Tribunal) not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    The applicant was born in 1993 in what is now South Sudan. He arrived in Australia in November 2005. Between 2012 and 2016 he committed more than 70 criminal offences. In May 2016 he was convicted of robbery and making a threat to kill, and was sentenced to a total of 18 months’ imprisonment.

3    On 19 September 2016, the applicant’s Class XB Subclass 202 (Global Special Humanitarian) visa was cancelled under s 501(3A) of the Act. He requested that this decision be revoked and, on 9 January 2017, a delegate of the first respondent (the Minister) revoked the cancellation.

4    The applicant was released from jail in late 2017. He soon reoffended. On 4 September 2018 he was convicted of a number of offences, including unlawful assault and recklessly causing injury, and was sentenced to an effective term of imprisonment of 12 months.

5    On 22 October 2018, the Minister’s delegate again cancelled the applicant’s visa. The delegate did so under s 501(3A) of the Act, on the basis that the applicant did not pass the character test in s 501(6)(a). The applicant requested that this decision be revoked. His request was refused on 17 July 2019. The Minister’s delegate was not satisfied for the purposes of s 501CA(4)(b) of the Act that the applicant satisfied the character test, or that there was another reason why the cancellation of his visa should be revoked.

Decision of the Tribunal

6    The applicant sought review of the delegate’s decision in the Tribunal, without success.

7    The applicant conceded that he did not pass the character test. As to whether there was another reason to revoke the cancellation, the Tribunal found there was none, concluding (at [308]):

After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances of the case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.

Application to this court

8    On 18 November 2019, the applicant filed an originating application for review of the Tribunal’s decision in this court. He no longer presses the grounds set out in that initial application. He instead relies, with the Minister’s consent, on the grounds set out in an amended originating application dated 28 February 2020. Those grounds are as follows:

1.    The Tribunal misunderstood the effect of s 197C of the [Act] and/or made a finding not supported by the evidence, when it found that ‘there is only a low risk that Australia will breach its non-refoulement obligations in respect of the Applicant’ (at [269]).

Particulars

There was no evidence before the Tribunal that the Minister either might or would exercise any of his personal statutory powers to grant the Applicant a visa under s 195A, or take any other step that would avoid the Applicant from being removed from Australia as s 198 of the Act requires. In these circumstances, s 198 requires the Applicant to be removed from Australia, and the effect of ss 197C and 198 of the Act is to require the refoulement of the Applicant, notwithstanding that under international law Australia owes the Applicant non-refoulement obligations.

2.    The Tribunal misunderstood the evidence from the psychiatrist as ‘that the risk the Applicant will reoffend is high’, or found that the psychiatrist gave such evidence (at [118]).

Particulars

The psychiatrist did not give any evidence to that effect.

Ground one: incorrect finding as to risk of refoulement

9    When considering the application of s 501CA to the applicant, the Tribunal relied, as it must, on Direction No. 79, a direction given by the Minister under s 499 of the Act which, among other things, “provide[s] a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” (the Direction).

10    Under the Direction, one of the factors that the Tribunal was required to consider was Australia’s international non-refoulement obligations: cl 10.1. The Tribunal considered those obligations in detail and made three relevant findings:

(1)    It was likely that Australia owed international non-refoulement obligations in respect of the applicant.

(2)    It was unlikely that the applicant would be granted a protection visa given his criminal history.

(3)    Nonetheless, the risk that Australia would breach its non-refoulement obligations if the cancellation of the applicant’s visa were not revoked was low.

11    The applicant submits that the Tribunal’s third conclusion cannot be sustained, because ss 197C and 198 of the Act required him to be removed from Australia. Those sections relevantly provide as follows:

197C    Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

198    Removal from Australia of unlawful non-citizens

…

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

Note:    The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

(3)    The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.

12    The applicant submits that s 198(2B) applied to him at the time of the Tribunal’s decision (and continues to do so), meaning that an officer was under a duty to remove him from Australia as soon as reasonably practicable. That duty, he says, meant there was a risk that Australia would breach its non-refoulement obligations. He submits that this risk was reinforced by s 197C, which provides that his removal from Australia was required regardless of Australia’s non-refoulement obligations (citing DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at 581 [27] (North ACJ)). Given the effect of these provisions, and the Tribunal’s finding that he was unlikely to be granted a protection visa, he submits that it cannot have been the case that the risk of his refoulement was “low”.

13    The Direction provides (at cl 10.1(2)) that “[t]he existence of a non-refoulement obligation does not preclude cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists” (emphasis added).

14    The applicant makes two submissions as to why, despite that policy statement, the Tribunal was wrong to say his risk of refoulement was low. First, he submits that the statement is inconsistent with ss 197C and 198(2B) of the Act. Counsel for the applicant said in oral argument:

… it can’t be that there is a law that says that the existence of these international obligations should not impede the duty to remove, and yet, for the Minister to say that he will still adhere to those obligations because [a] statement of intention to not comply with the law is really what that amounts to.

15    Second, the applicant submits that the Tribunal itself made a finding (at [266]-[268]) that the policy statement would not be effective in preventing his refoulement. In those paragraphs, the Tribunal considered the decision of Kerr J in BDQ19 v Minister for Home Affairs [2019] FCA 1630; 167 ALD 38 and reasoned as follows:

The Tribunal notes … that despite Kerr J’s confidence that Australia would never breach its non-refoulement obligations, the Tribunal is not so confident. First, if there were no risk that that Australia would ever breach its non-refoulement obligations in relation to an Applicant, it is not clear why consideration of Australia’s non-refoulement obligations would ever be relevant in the exercise of the discretion.

Secondly, as a matter of fact, it is always possible that this decision may not come to the Minister’s attention.

It is also possible that the Minister may decide not to consider the exercise of one of the non-compellable discretions the exercise of which would prevent a breach of Australia’s non-refoulement obligations. Although the Tribunal considers that these outcomes are unlikely, the Tribunal still considers that there is a risk that the Applicant will be unwittingly returned to South Sudan, in breach of Australia’s non-refoulement obligations.

16    The applicant also seeks to impugn the Tribunal’s reliance on s 195A of the Act as a basis for its conclusion that his risk of refoulement was low. That provision would allow the Minister to prevent the applicant’s refoulement by granting him a visa, provided doing so is in the public interest. But the applicant submits that there was no evidence that the Minister was actually considering s 195A or any other “backup plan to ensure that non-refoulement obligations would be adhered to”. In those circumstances, he submits that the Tribunal’s reliance upon a possible future exercise of s 195A or another similar power was impermissible speculation (citing NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at 3-4 [4] (Allsop CJ and Katzmann J), 25-27 [123]-[131] (Buchanan J); Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33] (Flick J); Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at 71 [61(f)] (Allsop CJ, Griffiths and Wigney JJ); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at 473 [75] (Bromberg and Mortimer JJ)). The applicant says further that the Tribunal itself recognised that a future exercise of s 195A was “speculative”, when it reasoned as follows (at [221]):

If this situation were to eventuate, that Australia has non-refoulement obligations in respect of a person, but that the person is not granted a Protection visa, it is still possible for the Minister to personally intervene by the exercise of one of a number of discretionary powers to grant the non-citizen a visa, most obviously the Minister’s discretionary powers in section 195A, section 417 and section 501J of the Act. However, all of these powers are only exercisable if the Minister thinks that it is in the public interest to do so. In circumstances where a non-citizen’s visa has been cancelled under section 501(3A) of the Act for having a substantial criminal record, it may be difficult for the Minister to think that it is in the public interest to grant such non-citizen a visa (however, presumably the public interest in not breaching Australia’s non-refoulement obligations would be considered in coming to a decision regarding the overall public interest). However, whether the Minister will exercise a non-compellable discretion is speculating …

17    The applicant submits that the error alleged in this ground is material. He says the finding – that there was only a low risk of the applicant’s refoulement – led the Tribunal to place (at [269]) “only moderate weight” on Australia’s non-refoulement obligations as a factor in the applicant’s favour. The applicant submits that if the Tribunal had correctly found that refoulement was in fact certain, it may not have affirmed the delegate’s decision.

18    The Minister submits that the Tribunal understood that ss 197C and 198 of the Act appear to require the applicant’s removal from Australia. The Minister points out, however, that the Tribunal also stated that “section 197C of the Act would not prevent the detention of a non-citizen pending the consideration by the Minister of his discretionary powers” (at [222]). The Minister submits that this statement was correct, citing DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at 581 [26] (North ACJ) and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 191 [16] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). (Counsel for the applicant conceded that the latter case “is understood to be an authority for the proposition that despite the duty to remove as soon as reasonably practicable, it is permissible to continue to detain someone while the Minister decides whether to exercise the [s] 195A power”.)

19    The Minister submits that the Tribunal’s reasoning about the potential use of discretionary powers such as s 195A to avoid refoulement is supported by Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J). As noted above (at [16]), that case is also relied upon by the applicant, albeit for the opposite proposition. The relevant passages from Flick J’s reasons are as follows (at [31]-[34]):

31.    To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:

•    that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or

•    the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.

The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’.

32.    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

33.    But these are all decision[s] to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

34.    Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

(Emphasis added.)

The applicant relies primarily on the italicised parts of [33], the Minister on [31].

20    In oral argument, counsel for the Minister accepted that, in that passage, Flick J was considering an issue which is not raised in this case. He submitted nonetheless that the passage does not stand for the proposition that consideration of whether the Minister might grant a new visa to the applicant in the future “was completely irrelevant and would lead immediately to error, but simply says that they’re all for the future and they would be a range of very difficult choices for the Minister or decision-maker to make”.

21    The Minister also relies on XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 (Wheelahan J) (XFKR). Like this case, XFKR concerned a decision of the Tribunal to affirm a decision not to revoke the cancellation of a person’s visa under s 501CA(4) of the Act. In making its decision, the Tribunal applied Direction No. 65, the predecessor to the relevant Direction in this case, which similarly required consideration of Australia’s non-refoulement obligations and included a policy statement to the effect that Australia would not deport a non-citizen in contravention of those obligations.

22    In XFKR, the Tribunal accepted that Australia owed non-refoulement obligations in respect of the applicant, but considered that “any concern that arose in relation to the deportation of the applicant if the decision to cancel his visa was not revoked was minimised by a clear commitment from the Australian government not to refoule anyone who is owed protection once that need for protection is properly assessed” (XFKR at [45]). In making that finding, the Tribunal relied on, among other things, the policy of non-refoulement stated in the relevant direction and confirmation from the Minister’s counsel that the Minister did not intend to breach Australia’s non-refoulement obligations: ibid at [45]. The Tribunal explicitly declined to comment on the prospects of any protection visa application the applicant might make in future: ibid at [49]. Nonetheless, it found that the risk the applicant would be harmed if deported “[was] minimised by the fact that [the applicant could] apply for a protection visa and will not be returned if he [were] found to be owed protection”: ibid at [52].

23    In response to those findings, the applicant in XFKR submitted that the Tribunal had erred by failing to recognise that he would almost certainly be refused a protection visa on character grounds, and would then have to be removed from Australia immediately under ss 197C and 198 of the Act, or detained indefinitely. This argument was rejected. Wheelahan J held that the Tribunal had not misunderstood the course of future decision-making under the Act, and had not made a material error by considering the possibility that the applicant might be granted a visa: ibid at [90]-[91]. His Honour also held that the Tribunal had not erred by taking into account evidence of the Minister’s policy against breaching Australia’s non-refoulement obligations, as follows (ibid at [92]):

As to the Tribunal’s reference at [113] of its written statement to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which is set out at [45(2)] above, and to the submissions by counsel for the Minister before the Tribunal that it was not the Minister’s intention to breach Australia’s treaty obligations, I find that there was no material error in the way the Tribunal treated those matters. The Tribunal found on the limited evidence before it that the applicant faced at least some risk of harm if he returned to Myanmar, and at [123] accepted that non-refoulement obligations were owed in respect of the applicant. The Tribunal found at [117] that any concern that the applicant might be deported was minimised by the commitment by the Australian government not to refoule anyone in respect of whom protection is owed. In the passage from the Explanatory Memorandum that the Tribunal cited, reference is made in this regard to the Minister’s non-compellable personal power under s 195A of the Migration Act. Statements as to Ministerial intention were factual matters for the Tribunal to evaluate, and there was no material error by the Tribunal in taking them into account.

(Emphasis added.)

24    The Minister submits that the Tribunal’s decision in the present case should be treated in the same way. He submits that the Tribunal did not misunderstand the operation of the Act, or the policy of the Minister, as follows:

The Tribunal was not making any assumptions about what would happen to the applicant, but was making an assessment of risk. The Tribunal well understood that the Act required the applicant’s return if he was not granted a protection visa and consideration of further visas had taken place or been refused. It understood that there was some prospect of the applicant being returned, but it also understood that the government’s stated policy stood against that prospect and was supported by the Minister’s powers that would allow adherence to the policy.

25    Finally, the Minister distinguishes this case from NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. That case, he submits, involved the Minister rejecting the possibility that an applicant faced indefinite detention on the basis that he might yet be granted a visa. Relying on the possibility of a future visa to avoid considering indefinite detention was impermissible speculation. Here, by contrast, the Tribunal squarely confronted the possibility of refoulement. Counsel for the Minister submitted that the Tribunal’s consideration of future visa possibilities for the applicant “wasn’t speculative reasoning, but rather a proper assessment of risk, noting that there might be various different ways in which this would come about or it might end”.

26    In oral submissions, counsel for the applicant submitted that XFKR should be distinguished on a number of grounds.

27    The first distinction contended for was that in XFKR counsel for the Minister told the Tribunal during oral submissions that the Minister did not intend to breach Australia’s non-refoulement obligations. That did not occur in this case, but, with respect, I am unable to see how that is significant. In this case, as in XFKR, the Tribunal already had evidence of the Minister’s policy position in the Direction.

28    The second distinction contended for was that in XFKR the Tribunal only acknowledged the possibility that a protection visa would not be granted to the applicant, whereas here the Tribunal found that it was unlikely that a protection visa would be granted. That, it seems to me, is a distinction without a difference. In this case, the Tribunal identified (at [210]) two factors that were relevant to its assessment of the risk that Australia might breach its non-refoulement obligations: (i) the likelihood that the applicant would be granted a protection visa; and (ii) the likelihood that, even if a protection visa were refused, the Minister would nonetheless exercise a discretion to prevent a breach of Australia’s non-refoulement obligations. It was the second factor, and the terms of the Direction, that led the Tribunal to assess the risk of refoulement in this case to be low: at [262]-[265]. Neither of those considerations depended on the applicant being granted a protection visa.

29    The third distinction contended for was that in this case, unlike XFKR, the Tribunal found the Direction would not as a matter of fact prevent the applicant’s refoulement. I do not agree. The Tribunal found that there was a risk that the Direction would not be effective – because, for example, the applicant might be returned to South Sudan “unwittingly”: at [266]-[268] (extracted at [15] above). But the Tribunal also said explicitly that such risks were “unlikely” to eventuate: at [268]. These findings accord with the Tribunal’s overall view that the risk of refoulement was “low”, rather than non-existent. They do not provide any relevant basis for distinguishing XFKR.

30    The fourth distinction contended for was that the applicant’s argument in this case, that the Direction cannot supplant “what the law says must happen” (the requirement under ss 197C and 198 of the Act that the applicant be removed from Australia), was not made in XFKR. But that is not so. In XFKR, the applicant submitted that “any application by the applicant for a protection visa would almost certainly be refused on character grounds, following which the operation of ss 197C and 198 of the Act would require the applicant’s removal”: XFKR at [69]. In any event, the submission was adequately met in this case by the Tribunal’s finding that ss 197C and 198 would not prevent detention of the applicant pending consideration by the Minister of his discretionary powers: at [222], [263], citing DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (North ACJ).

31    The final distinction contended for was that in XFKR “it does not seem to have arisen in his Honour’s reasons … whether the consideration of a potential exercise of personal powers is impermissible speculation”. However, once it is accepted that in this case, as in XFKR, the Tribunal based its assessment of what the Minister would do in future on evidence of the Minister’s policy, as it was entitled to do, the question of impermissible speculation does not arise.

32    In my view, statements as to Ministerial intention were factual matters for the Tribunal to evaluate, and it made no material error by taking them into account. In particular, it made no material error by relying on the policy statement against refoulement in the Direction to conclude that the applicant faced a low risk of refoulement.

33    It follows that ground one fails.

Ground two: mischaracterisation of psychiatrist’s evidence

34    Before the Tribunal, the applicant relied on the oral evidence of a psychiatrist, Dr Kym Jenkins, and on a report Dr Jenkins prepared dated 12 September 2019. The Tribunal’s reasons record the following relevant findings about that evidence (at [84]-[85], [112]-[118]):

84.    While the psychiatrist indicated that she was of the opinion that the Applicant suffered from borderline personality disorder, she was unable to make a formal diagnosis of this …

85.    The psychiatrist indicated that if the Applicant were to complete the treatment outlined in her statement above, she believed that his risk of reoffending would be considerably reduced. Conversely, the psychiatrist indicated that if he did not complete the recommended treatment, he would not have the opportunity to rehabilitate, that his prognosis would not be good at all and that ‘history may well repeat itself.’ The Tribunal takes this evidence from the psychiatrist to indicate that unless the Applicant were to complete the suggested rehabilitation programs, that there is a high risk that he would reoffend. The Tribunal also takes the psychiatrist’s evidence to mean that if he were to complete the suggested rehabilitation programs that his high risk of reoffending would be considerably reduced.

…

112.    The psychiatrist report suggested intensive treatment for the Applicant’s alcohol abuse and mental condition. The psychiatrist report concludes:

‘Until [the applicant] has received treatments as indicated above for both his alcohol abuse and personality disorder, I did not feel he will have been given adequate opportunity to rehabilitate.’

113.    The psychiatrist indicated that if the Applicant were to complete the treatment outlined in her statement above, that she believed that his risk of reoffending would be considerably reduced. Conversely, the psychiatrist indicated that if he did not complete the recommended treatment, he would not have the opportunity to rehabilitate, that his prognosis would not be good at all and that ‘history may well repeat itself.’

114.    The Tribunal takes this evidence from the psychiatrist to indicate that unless the Applicant were to complete the suggested rehabilitation programs, that there is a high risk he would reoffend. The Tribunal also takes the psychiatrist’s evidence to mean that if he were to complete the suggested rehabilitation programs that his high risk of reoffending would be considerably reduced.

115.    The Tribunal finds that it is very unlikely that the Applicant will undertake the intensive alcohol abuse and psychological rehabilitation programs necessary to considerably reduce the risk that he poses to the community. The evidence before the Tribunal shows that the Applicant has failed on numerous occasions to undertake rehabilitation courses, even those ordered by the court. Where the Applicant has undertaken some rehabilitative courses, those courses have failed to prevent the Applicant from consuming alcohol or reoffending. The Applicant has breached community corrections orders on a number of occasions.

…

117.     The Applicant continued to offend despite repeated warnings from sentencing judges, the cancellation of his visa in 2016 and having been sentenced to 18 months imprisonment in 2016. The Tribunal does not accept the Applicant’s claim that his period in immigration detention or having appeared before the Tribunal will in any way mean that he will undertake the intensive treatment required to reduce the risk of his reoffending.

118.    As the Tribunal is not satisfied that the Applicant will successfully undertake the intensive rehabilitation treatment necessary to reduce the Applicant’s risk of reoffending, the Tribunal accepts the psychiatric evidence that the risk that the Applicant will reoffend is high.

(Emphasis added.)

35    In the emphasised parts of those passages, the Tribunal “takes … evidence from the psychiatrist to indicate that unless the Applicant were to complete … rehabilitation programs … there is a high risk that he would reoffend” and “accepts the psychiatric evidence that the risk that the Applicant will reoffend is high”.

36    In the applicant’s submission, the psychiatrist did not assess his risk of recidivism as “high” in an “absolute” sense. Rather, it is submitted, the psychiatrist’s report made only a relative comparison of his risk of recidivism with and without the benefit of treatment, as follows:

Until [the applicant] has received treatments as indicated above for both his alcohol abuse and personality disorder, I do not feel he will have been given adequate opportunity to rehabilitate. Treatments for borderline personality have been shown to help people overcome emotional problems, learn how to understand and live with themselves, find a purpose in life and build better relationship: all of which would mitigate the risk of further offending.

Attention should also be given to his social situation. Homelessness and social dislocation are likely to lead to a relapse of alcohol abuse and therefore increase the risk of further offending.

37    The applicant also refers to the following exchange from the transcript of the Tribunal hearing (which appears to have informed the passages from the Tribunal’s reasons set out at [34] above). As with the psychiatrist’s report, he submits that this oral evidence did not involve any absolute assessment of his risk of recidivism as high:

[THE TRIBUNAL:] I suppose the next question is in your report after – on the seventh page after outlining those treatments or recommendations, you’ve then said:

Until [the applicant] has received treatments as indicated above for both alcohol abuse and personality disorder, I do not feel he will have been given adequate opportunity to rehabilitate.

So I suppose the second question … is if the applicant doesn’t undergo any of these treatments, the alcohol rehabilitation or the personality disorder treatment, are you able to say in your professional view or in your expert view what the applicant’s risk of reoffending might be?

[DR JENKINS:] I don’t think – I think [his] prognosis is at all good if those options – if he doesn’t have that opportunity to have that rehabilitation. I think history may well repeat itself.

38    The applicant submits that the Tribunal incorrectly took the psychiatrist’s evidence to mean that his risk of recidivism was high, instead of making this finding itself as a matter of evaluative judgement. He submits that this was a material error.

39    The Minister submits that the applicant’s approach involves impermissibly reading the Tribunal’s reasons with an eye keenly attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). He submits that the Tribunal accurately set out the psychiatrist’s evidence at [85] and [112]-[113] of its reasons, and that the impugned statements at [85] and [115] should be read as the Tribunal’s own conclusion, drawn from the evidence it had just set out.

40    In response to this submission, counsel for the applicant cited the following passage from TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 at [36], where Emmett J held:

The observations made by the High Court of Australia in Wu Shan Liang’s Case may not be of great significance in relation to reasons that have been formulated carefully and deliberately with the possibility of judicial review clearly in mind. The decision under review was made on behalf of the Authority by its Chairman, with the assistance of considered legal advice, in the light of detailed legal submissions made on behalf of the applicants by their solicitors. The Authority’s determination was not that of a lay administrator made without assistance. It is fair to conclude, therefore, that the Authority’s reasoning of 29 November 2001 represents the result of consideration and deliberation by the members of the Authority and its staff, including legal advisers, in the expectation that the reasons would be carefully analysed by the applicants and their advisers and by members of the public generally. Thus, the reasons should be understood as a deliberate and considered statement by the Authority of its reasoning process. 

41    The Minister also submits that, in any event, even if the psychiatrist’s evidence did not expressly state that the applicant’s risk of recidivism was high, that conclusion should be inferred. He relies in this regard on the psychiatrist’s evidence that the applicant’s prognosis was “not good” if he did not attend treatment, and that history “may well repeat itself” (see [37] above).

42    In the alternative, the Minister submits that the error alleged by the applicant in this ground is not material, because the Tribunal was already “plainly convinced that the risk of reoffending was very high – almost certain – based on [the applicant’s] history alone”. The Minister relies in particular on the Tribunal’s reasons at [115], where the Tribunal said:

… the Tribunal is satisfied that given the Applicant’s intensive criminal history and his failure to cease offending despite the many opportunities that he has been given to rehabilitate himself, and despite the Applicant knowing full well after receiving the warning from the Department that future offending could result in his separation from his family and his removal to South Sudan, that it is almost certain that the Applicant will continue to commit violent offences against members of the Australian community if he is allowed to remain in Australia.

43    Put another way, the Minister submits that given all the evidence about the applicant’s history of reoffending, ignoring warnings, and failing to complete rehabilitation, “there is no prospect at all that the Tribunal would have made any finding other than that the protection of the Australian community weighed strongly against revoking the cancellation”.

44    In my view, the Tribunal did not mischaracterise the psychiatrist’s evidence in the way that the applicant contends. Although the psychiatrist did not state in terms that the applicant’s risk of recidivism was “high”, that was the implication fairly to be drawn from her statements that, absent treatment, the applicant’s prognosis was “not at all good” and that “history” – being the applicant’s history of violent offending – “may well repeat itself”.

45    Even if the Tribunal had made the error alleged, such an error would not have been material. That is because the other evidence before the Tribunal more than justified its finding that the applicant’s risk of recidivism was high. For example, based on that other evidence, the Tribunal made the following findings:

(1)    The applicant had a history of committing “appalling violent offences” over “a significant period of time”. He had committed over 70 offences in Australia, including 24 offences of violence against the person.

(2)    The applicant had been sentenced to imprisonment on four occasions.

(3)    The applicant had failed on numerous occasions to undertake rehabilitative courses, even those he had been ordered to undertake by a court, and where he had undertaken such courses, they had failed to prevent him from consuming alcohol or reoffending.

(4)    The applicant had breached community corrections orders on a number of occasions.

(5)    The applicant had continued to offend despite repeated warnings from sentencing judges, the cancellation of his visa in 2016, and having been sentenced to 18 months’ imprisonment in 2016.

46    It follows that ground two fails.

Disposition

47    For the foregoing reasons, neither of the applicant’s grounds has merit. The application will therefore be dismissed with costs.

Associate:    

Dated:    7 August 2020