FEDERAL COURT OF AUSTRALIA
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for judicial review of the decision of the Administrative Appeals Tribunal dated 3 April 2020 is dismissed.
2. The applicant is to pay the costs of the first respondent as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 This is an application for judicial review of a decision of the second respondent (the Tribunal). By that decision, the Tribunal affirmed a decision by a delegate of the first respondent (the Minister) made under s 501CA of the Migration Act 1958 (Cth) (the Migration Act) not to revoke the mandatory cancellation of the applicant’s visa.
2 As the applicant had applied unsuccessfully for a protection visa in the past and may in the future make a request for the Minister to permit him to reapply under s 48B of the Migration Act, orders were made for the applicant’s name to be suppressed under s 37AF(1)(a) of the Migration Act on the ground that it was necessary to protect his safety and a pseudonym, DKN20, was substituted in place of his name. As a result I will refer to the applicant as Mr DKN in these reasons.
3 Mr DKN did not have legal representation. However, he filed detailed and helpful written submissions which I have considered carefully, together with his oral submissions. I note that, while English was not his first language, Mr DKN asked to make his submissions in English which I permitted despite his request for an interpreter before the hearing because I was satisfied that he was sufficiently proficient in English and that he felt more comfortable making his submissions directly in English. However, in order to avoid any possible misunderstanding, the interpreter assisted in interpreting any submissions made by him where they were unclear and interpreted the whole of the Minister’s oral submissions and any questions from the Bench. The Minister also filed written submissions before the hearing which were supplemented by oral submissions by Mr Hill of counsel at the hearing.
4 In summary Mr DKN alleges that the Tribunal:
(1) did not properly consider his daughter’s best interests (ground 1);
(2) failed to properly consider the medical evidence as a result of which it did not properly consider Mr DKN’s mental health issues (ground 2);
(3) erred in its assessment of the seriousness of his offending and failed to properly consider his convictions (ground 3); and
(4) down-played the impediments which he would face if deported and their impact upon his loved ones (ground 4).
5 The Minister alleges that ultimately Mr DKN seeks to challenge factual findings by the Tribunal with which he disagrees and therefore his claim must fail as it is not open to this Court to revisit the merits of the Tribunal’s decision. Rather, as he correctly submits, on an application for judicial review, this Court may consider only whether there has been a serious legal error made by the Tribunal which constitutes a jurisdictional error (as explained at [53] below).
6 For the reasons set out below, Mr DKN has not established that the Tribunal fell into jurisdictional error and his application must therefore be dismissed.
2.1 Mandatory cancellation of Mr DKN’s visa
7 The applicant is a citizen of Morocco who first arrived in Australia in late 2006 (Case Book (CB) 76-77 and 171). He applied for a protection visa in early 2007 which was refused (as explained by the Tribunal in its reasons dated 3 April 2020 (TR) at [21]).
8 On 28 August 2011 Mr DKN was granted a Partner Class BS Subclass 801 (Permanent) visa (the visa) (CB 172). Before Mr DKN and his former wife separated in 2011, they had a daughter who is an Australian citizen (TR at [21]). The daughter lived with her mother after the separation.
9 On 20 November 2015, Mr DKN was convicted of stalking (contacting a person by telephone) by the Melbourne County Court and sentenced to seven months imprisonment with a two-year Community Corrections Order (CB 32 and 38 [18]). The offending in question concerned the making of constant and abusive phone calls in relation to a member of the police force in Bankstown (CB 38). While the sentencing remarks of Judge Wilmoth for the 2015 conviction were not before the Tribunal, her Honour’s sentencing remarks for the 2016 convictions were in evidence before it and these referred back to relevant aspects of the earlier sentencing remarks.
10 The conduct the subject of the convictions in 2015 arose out of Mr DKN’s perception following his separation from his wife that he had been treated unfairly and in a racially discriminatory manner, and was wrongly convicted of assault in Western Australia (CB 39 [23]). In her sentencing remarks, Wilmoth J noted that whilst on remand, a psychiatrist had provisionally diagnosed Mr DKN as suffering from a delusional disorder or psychosis and had prescribed the antipsychotic, olanzapine (CB39 [24]). Her Honour moderated Mr DKN’s sentence for the 2015 conviction to some degree on the ground that his mental illness had reduced his responsibility for his actions but considered that being intoxicated or under the influence of drugs at the time of making the calls was “only part of the story” (CB 39 [26]).
11 Subsequently, on 25 November 2016, Mr DKN was sentenced to 2 years imprisonment also by Judge Wilmoth, Melbourne County Court, of a State offence for stalking another person (Charge 2) (CB 32 and 44–45). At the same time he was sentenced for 12 months imprisonment for each of the following convictions of federal offences: using a carriage service to menace, harass or cause offence (Charge 1), using a carriage service to make a threat to cause serious harm (Charge 3), and using a carriage service to make a threat to kill (Charge 4). In her sentencing remarks, Wilmoth J explained that the details of the offending with respect to Charge 1 were that between 20 February 2016 and 9 June 2016, he made 875 calls from his mobile phone to the Bankstown police station, 825 calls to the Bunbury police station in Western Australia, 68 calls to Perth Communications Centre, and 42 calls to Bunbury Magistrates’ Court in Western Australia (CB35). The calls were also found to be aggressive, abusive and vulgar in nature (CB35). Charges 2, 3 and 4 were unrelated to the first charge and concerned contact between Mr DKN and a man with whom he had been involved in a traffic collision (CB36).
12 By a letter dated 18 September 2017, the Department of Immigration and Border Protection advised Mr DKN that his visa was cancelled under the mandatory cancellation power in s 501(3A) of the Migration Act. Specifically, by reason of the sentence imposed on him for the 2016 stalking conviction, he did not pass the character test as defined in s 501(6)(a) and (7)(c) of the Migration Act and was in September 2017 serving a sentence of full-time imprisonment for a period of 12 months or more for breach of a State law. The letter also invited Mr DKN to make representations to the Minister about revoking the decision to cancel his visa, as required by s 501C(3)(b) of the Migration Act.
2.2 The delegate’s decision not to revoke the mandatory cancellation
13 Pursuant to s 501CA(4) of the Act, the Minister (and therefore her or his delegate) may revoke the decision to cancel an applicant’s visa under s 501(3A) if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
14 The same provision fell to be applied afresh by the Tribunal subsequently on review of the delegate’s decision because the Tribunal stands in the “shoes” of the delegate in deciding for itself what is the correct and preferable decision at the time of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
15 With respect to the proper construction of s 501CA(4), the Full Court held in Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 that:
21. … There has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…
16 As I held in Ali v Minister for Home Affairs [2020] FCA 538 at [10], “this means that if the Minister finds that there is ‘another reason’ why the decision to cancel an applicant’s visa should be revoked, the Minister must revoke the cancellation. The word “may”, in other words, does not in this context import a discretion. Rather, the decision is an evaluative one.”
17 On 9 October 2017, Mr DKN requested revocation of the cancellation decision and provided supporting documentation (CB 59). He also provided a statement which was received on 30 August 2018 (CB 90) and his representative made representations by letters dated 15 April 2019 and 13 May 2019 (CB 76 to 86 and 232 to 234 respectively).
18 On 13 December 2019, the Minister’s delegate decided under s 501CA of the Migration Act not to revoke the cancellation of Mr DKN’s visa (CB 11).
2.3 The issues before the Tribunal
19 Following Mr DKN’s application to the Tribunal for review of the delegate’s decision, Mr DKN’s representatives filed a statement of facts issues and contentions (applicant’s SFIC) (CB 923) together with further material. The further material included a statement by Mr DKN dated 24 February 2020 and a report from a clinical psychologist, Richard Taylor, dated 21 February 2020 (CB 945 and 1126 respectively). Given the sentence imposed, Mr DKN accepted that he did not satisfy the character test by virtue of having a substantial criminal record as defined in s 501(7) of the Migration Act (CB at 924). Rather, his submission was that his circumstances were such that the correct and preferable decision was to revoke the mandatory cancellation of his visa (ibid). Among other things, Mr DKN contended that:
(1) Judge Wilmoth’s sentencing remarks for the 2016 convictions (reproduced at CB34-49) noted that:
(a) Mr DKN’s mental illness had reduced his responsibility for his actions and that, upon receiving a provisional diagnosis of delusional disorder or psychosis, he was treated with medication which had a marked improvement on his mental health (applicant’s SFIC at [32]);
(b) “following his conviction on 20 November 2015, the applicant was supposed to have been referred for ‘an episode of complex counselling’ but that due to a mixup this referral had been delayed for some months (G4 at page 40)” (applicant’s SFIC at [33]);
(c) a forensic psychologist had diagnosed Mr DKN with “an adjustment disorder with mixed disturbance of emotions and conduct” and was of the opinion that at the time of Mr DKN’s offending, his “ability to think clearly and to exercise appropriate judgment was significantly impaired” by his mental health problems (G4 at page 41) (applicant’s SFIC at [34]);
(2) the sentence imposed by Judge Wilmoth reflected the seriousness of the offending “in particular being that the charges represented an escalation in offending and that the victim of the stalking charge was a member of the public” (applicant’s SFIC at [35]);
(3) while his offending “was of a threatening or intimidating nature,… no actual violence was perpetrated by the applicant” (applicant’s SFIC at [36]);
(4) he had engaged in mental health treatment whilst in prison and in detention and in other programs (applicant’s SFIC at [37]);
(5) he accepted that the offences for which he received a custodial sentence were offences “of a serious nature” but submitted that “given that these offences occurred whilst the applicant was suffering from severe mental illness, that the applicant has been engaging with a mental health care plan to address his treatment needs and, further, has been participating in programs which have given him a fundamental insight into some of the underlying causes of his prior offending,… the applicant’s risk of reoffending is significantly mitigated” (applicant’s SFIC at [38]); and
(6) he had a “strong relationship” with his daughter and that significant weight should be given to the best interests of his daughter given “the views expressed by the child’s mother regarding the emotional hardship that [the daughter] would endure should she be deprived of her father, and the courses that the applicant has engaged in to ensure that he can be a positive influence in [his daughters] life” (applicant’s SFIC at [51]).
20 The Minister filed a statement of facts issues and contentions dated 6 March 2020 (CB at 1151).
21 On 3 April 2020, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr DKN’s visa (CB at 1177). Its reasons for so finding are extensive, spanning 191 paragraphs, and should be set out with some care in order to place the findings challenged by Mr DKN in context.
22 The Tribunal found (as conceded by Mr DKN) that Mr DKN did not pass the s 501 character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more (TR at [11]-[12]). Specifically, the Tribunal found that he had been sentenced to an aggregate term of imprisonment of three years with respect to the 2016 convictions set out at [11] above (TR at [12]).
2.4.2 Whether there was another reason why the cancellation decision should be revoked
23 The Tribunal then explained why it was not satisfied that there was another reason why the cancellation decision should be revoked.
24 In considering this issue, the Tribunal correctly explained that, by virtue of s 499(2A) of the Migration Act, it was bound to comply with Direction No 79 Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501CA (Direction 79) (TR at [14]): see Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (HSKJ) at [41] (the Court) by analogy; and Ali v Minister for Home Affairs [2020] FCA 538 at [23] (Perry J). As a result, the Tribunal was required to take into account the Primary and Other Considerations specified in the direction and relevant to Mr DKN’s case in determining whether to revoke the mandatory cancellation of his visa (para 8, Direction 79). As the Tribunal noted at [36], cl 13(2) of Direction 79 provided that there were three Primary Considerations which it was required to take into account, namely:
(a) Protection of the Australian community from harm as a result of criminal activity or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
(Primary Considerations A, B and C respectively)
25 The content of the consideration “Expectations of the Australian community” is specified in para 13.3 of Direction 79 and is not a matter for the Tribunal to determine (Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Thawley J) at [37]; FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 at [104] (Stewart J)).
26 Paragraph 14(1) of the Direction provides a non-exhaustive list of the Other Considerations required to be taken into account, namely:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
(see also TR at [37]).
27 Primary Considerations “are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. … In effect, [Direction 79] requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (Colvin J); see also HSKJ at [37] (the Court) and para 8 of Direction 79.
2.4.2.2 Material before the Tribunal
28 Before turning to address each of the relevant Primary and Other Considerations under Direction 79, the Tribunal described the evidence before it relevant to those considerations, including the letter of Mr Richard Taylor, clinical psychologist, of 21 February 2020 (the Taylor report) and “144 pages of medical health records released under the Freedom of Information Act 1982 (FOI Act) from the time [the applicant] spent in a Victorian prison” (TR at [20]). It was not in issue that the latter did not include the medical records annexed to Mr DKN’s second affidavit affirmed 7 July 2020 (second affidavit) and that these records were not before the Tribunal.
29 The Tribunal also set out Mr DKN’s history of offending and found that:
(1) Mr DKN’s misuse of a carriage service in 2016 “appears to form part of a pattern of offending that has occurred over several years” (TR at [29]); and
(2) he had “also been convicted of a string of charges which would appear to show a lack of respect for Australia’s law enforcement framework and a disregard of commitments imposed in the context of that framework” given, among other things, the number of offences directed towards the police (TR at [31]).
2.4.2.3 Protection of the Australian community from criminal or other serious conduct (Primary Consideration A)
30 Primary Consideration A required the Tribunal to have regard to consider the protection of the Australian Community from criminal conduct: Direction 79 para 13.1. In particular, it required the Tribunal to have regard to:
(1) the nature and seriousness of Mr DKN’s conduct to date; and
(2) the risk to the Australian community should he commit further offences.
31 In turn, in considering the first of these matters, by virtue of para 13.1.1(1) the Tribunal was required to have regard relevantly to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…
32 The Tribunal found that Mr DKN’s offences using carriage services to menace, harass or cause offence, and to threaten serious harm and to kill were crimes of violence which must therefore be viewed “very seriously” applying cl 13.1.1(a) of Direction 79 (TR at [44]-[49]). The Tribunal also characterised Mr DKN’s offence of common assault on his former partner in 2011 as a violent crime against a woman, and found that it was therefore required to view the offence very seriously even though the Tribunal accepted that the offending was at the low end of the spectrum (TR at [51]-[54]). The characterisation of these offences as “violent” is challenged by ground 3 of the application and I consider the Tribunal’s reasons for so finding in the context of addressing that ground. In addition, the Tribunal regarded the fact that Mr DKN’s carriage services offences included abuse of members of the police force, as well as the sentences of imprisonment imposed on Mr DKN in 2015 and 2016, were further reasons to view this offending as serious, applying paras 13.1.1(c) and 13.1.1(d) of Direction 79 (TR at [60] and [64]).
33 The Tribunal found, as was accepted by Mr DKN, that the 2016 convictions “represented an escalation in his offending” in line with the views of the sentencing judge (TR at [67]; 2016 Sentencing Remarks of Wilmoth J at [41], CB43). The Tribunal found that Mr DKN’s offending was “frequent”, “consistent and repetitive” in the sense that it revealed “a lack of respect for Australia’s law enforcement framework” and “a consistent preparedness to threaten and harass others through his misuse of carriage services” (TR at [68] and [69]). The Tribunal found that the cumulative effect of Mr DKN’s offending had been “deleterious to not only those immediately affected but also to the Australian community at large” (TR at [70]).
34 The Tribunal was also required to give consideration to the risk to the Australian community if Mr DKN should commit further offences in considering Primary Consideration A (para 13.1, Direction 79). In considering this factor, the Tribunal was required by para 13.1.2, “to have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
35 In addressing this factor, the Tribunal, among other things, was satisfied that the risk of reoffending was “significant” although not likely, referring among other things to the sentencing judge’s remarks in 2016 that “[t]here can only be very guarded prospects for [Mr DKN’s]… rehabilitation” (TR at [77] and [78]). In this regard, the Tribunal acknowledged that its assessment stood in “stark contrast” to the opinion expressed by the consultant psychologist, Mr Taylor, in his report that Mr DKN was at no discernible risk of re-offending (TR at [80]). The Tribunal’s finding that it did not give “any weight” to Mr Taylor’s opinions (TR at [81]) is challenged by Mr DKN by ground 2 of his application and it is convenient to consider the Tribunal’s reasons in this regard later in the context of considering that ground.
36 The Tribunal accepted that Mr DKN’s more recent offending occurred in the context of his substance abuse and mental instability (TR at [84]; 2016 Sentencing Remarks of Wilmoth J at [42], CB43). As to substance abuse, the Tribunal was not confident that, if released into the community, Mr DKN would not again indulge in what it considered had been a “long-standing habit” (TR at [85]). In so finding, the Tribunal took into account that there was no evidence that Mr DKN had attended Alcohol Anonymous meetings, and that Mr DKN had resumed his drinking and use of methamphetamine within approximately two months after being released into the community in November 2015 (TR at [86]).
37 As to mental health issues, the Tribunal did not accept Mr DKN’s submission that there was little risk of him re-offending because his offending was in a material way the result of serious mental health issues and he is now engaged in a mental health care plan (TR at [87]). First, the Tribunal considered that this submission underplayed the role played by Mr DKN’s substance abuse in terms of his recent offending, notwithstanding the Tribunal’s acceptance of Mr DKN’s mental health issues (TR at [89]-[90]). Secondly, the Tribunal did not accept Mr DKN’s submission that his most recent offending occurred before his mental health issues were diagnosed which he was now addressing via a mental health care plan. To the contrary, the Tribunal found that the diagnoses were made, and a treatment plan prescribed, before his most recent offending in 2016 (TR at [91-[92]). In this regard, the Tribunal at [92]:
… note[d] [Mr DKN’s] failure to heed the warning given to him in his sentencing in November 2015 about the necessity to take medication, a warning that was repetitive of one given by a prison psychiatrist to [Mr DKN] while he was still in remand.
38 Thirdly, the Tribunal did not accept that Mr DKN’s mental health issues were currently being treated, or would be treated if he were released into the community, because there was “no material before me on the basis of which I could be satisfied that [Mr DKN’s] mental health issues are currently being treated or that they would be treated if he was released into the community” (TR at [93]; emphasis added). In this regard the Tribunal found that questioning at the Tribunal hearing disclosed that Mr DKN no longer takes any medication for mental health issues, presumably on the basis that any such issues are now resolved, and that Mr DKN’s involvement in certain life skills and other courses did not amount to a meaningful engagement with a mental health care plan (TR at [94]). This finding is also challenged by Mr DKN who seeks to lead the medical reports annexed to his second affidavit to refute the Tribunal’s finding.
39 Fourthly, the Tribunal did not accept Mr Taylor’s opinion that Mr DKN’s psychological distress had wholly remitted or that Mr DKN has “excellent foundations for safeguarding and maintaining his psychological help” (at [95]-[96]). The Tribunal found that Mr Taylor “was not simply acting as an independent expert opining impartially on matters within his field of expertise” (TR at [97]). In addition, Mr Taylor had referred to the need for Mr DKN to have future and timely sessions with a clinical psychologist, which suggested in the Tribunal’s view that much depended on Mr DKN’s ongoing willingness to seek and engage with appropriate treatment outside an institutional context (TR at [98]). The Tribunal also took into account that no explanation was given for the failure to call Mr Taylor to give evidence and considered that this lessened the weight which the Tribunal might otherwise have given to his opinions (TR at [99]).
40 Furthermore, while Tribunal accepted that Mr DKN was remorseful, the Tribunal suspected that any insight into his offending was somewhat qualified (TR at [102]).
41 As to other factors which might bear upon the risk of reoffending, the Tribunal considered that Mr DKN’s history suggested that his work prospects were not particularly bright (TR at [103]). The Tribunal also accepted that Mr DKN had a support network in the Moroccan community in Victoria and Sydney, and that Mr DKN’s family in Sydney were also supportive (TR at [105]-[107]). However, it found that this support network had not been effective in the past to prevent him from offending (TR at [108]).
42 The Tribunal concluded on Primary Consideration A that Mr DKN’s offending was serious and repetitive, and that there was a significant risk of him re-offending (TR at [110]). It found that the protection of the Australian community weighed heavily against the Tribunal being satisfied that there was another reason to revoke the cancellation decision (TR at [111]).
2.4.2.4 Best interests of the minor children in Australia (Primary Consideration B)
43 As the Tribunal accepted at [112], the best interests of minor children in Australia is also a primary consideration which it was required to determine in relation to each child under Direction 79. In line with this, the Tribunal considered individually the position in relation to Mr DKN’s daughter, nephew and niece. Relevantly for present purposes, the Tribunal found that Mr DKN’s relationship with his daughter was “non-parental” being a finding challenged by Mr DKN in ground 1, and that he had had little contact with her (TR at [116]-[122]).
44 The Tribunal accepted that it would be in the best interests of each of these children to revoke the cancellation decision, but did not give this consideration significant weight (TR at [144]-[145]). In the Tribunal’s view, the effect of removal of Mr DKN on his nephew and niece would be “slight” (TR at [146]). As to his daughter, the Tribunal found that the adverse effect of removal would arise only when assessed against the possibility of Mr DKN being released into the community, obtaining and exercising meaningful access rights, and not re-offending. However, the Tribunal “harbor[ed] some doubts as to whether these contingencies would be satisfied” given that:
In the short term at least it is unlikely that [Mr DKN] will have and exercise meaningful access rights, given that he does not currently have such rights and his intention is to live in Sydney while his daughter lives in Queensland. As for reoffending, as discussed earlier, I consider that there is a significant risk that he will do so.
(TR at [146]).
2.4.2.5 Expectations of the Australian community (Primary Consideration C)
45 The final primary consideration which the Tribunal was required to take into account is the expectations of the Australian community. These expectations are defined by para 13.3(1) of Direction 79 as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
46 The Tribunal found that, given the seriousness of Mr DKN’s offending and his lack of respect for the Australian law enforcement network, the expectations of the Australian community weighed in favour of non-revocation “to a significant extent” (TR at [155]-[156]).
47 The Tribunal then turned to consider Other (non-primary) Considerations, commencing with Australia’s international non-refoulement obligations. These obligations are defined in para 14.1(1) of Direction 79 as follows:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The [Migration] Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
48 With respect to this consideration, the Tribunal set out Mr DKN’s claim that his life was threatened in Morocco in 2007 by a gang dealing in drugs. It also found that he had applied for a protection visa in 2007 apparently because he feared harm for this reason but his application was refused (TR at [160]). Given Mr DKN’s evidence at the Tribunal hearing to the effect that he did not know whether he was still at risk from the Moroccan gang, the Tribunal found that:
161. … Put simply, [Mr DKN] does not claim that there is a risk of harm should he be returned to Morocco, just that there might be such a risk. There was no material before me tending to establish the extent let alone existence of that possible risk. I note that in the psychologist’s report there is no reference to [Mr DKN] having referred to this possible risk…
49 The Tribunal therefore found that Mr DKN’s circumstances were not such as to engage Australia’s non- refoulement obligations (and that Mr DKN did not claim that those obligations were engaged). For example, it was not contended that any risk faced by Mr DKN was for a reason under the Refugees Convention, namely, by reason of his race, religion, nationality, membership of a particular social group, or political opinion (TR at [162]). Moreover, the Tribunal found that, quite apart from the issue of non-refoulement obligations, the “ephemeral nature of the potential risk of harm raised by” Mr DKN, and the absence of any material to support its existence, meant that this consideration could not be taken into account in favour of revocation in any material way (TR at [164]).
50 With respect to the extent of impediments that Mr DKN may face if returned to Morocco, the Tribunal noted at [179] that he may encounter “some initial difficulties” but took into account factors reducing those impediments as I later explain.
2.4.2.7 The Tribunal’s conclusion
51 The Tribunal found, on the one hand, that the best interests of minor children and other considerations, including in particular its findings as to the strength, nature and duration of Mr DKN’s ties to Australia, supported revocation of the cancellation decision. On the other hand, it considered that the protection of the Australian community and community expectations supported non-revocation (TR at [186]). The Tribunal concluded that:
187. In the result, I am not satisfied that there is another reason for revocation of the decision to cancel [Mr DKN’s] visa. As I just indicated, this state of non-satisfaction is consistent with my findings in relation to two of the three primary considerations. In this regard, the general position under Direction 79 which has the primary considerations being given greater weight than the other considerations is not displaced in the circumstances of this proceeding. Further, this proceeding is not one in which the one primary consideration supportive of there being another reason for revocation of the visa cancellation decision (the best interests of minor children in Australia) outweighs the other two primary considerations. The weight which the primary consideration supportive of [Mr DKN’s] case is not significant while the weight which I attribute to the other two primary considerations which do not support [Mr DKN’s] case is significant.
52 It is helpful briefly to summarise the relevant principles before considering whether Mr DKN’s grounds of judicial review have been established.
53 First, the Court’s jurisdiction is limited to deciding whether the Tribunal’s decision was made lawfully under the Migration Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Tribunal would make a jurisdictional error if, for example, it failed to engage in an active intellectual process in determining whether there were other reasons for revoking Mr DKN’s visa cancellation or if its reasons were irrational and illogical, see generally Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court). However, the Court does not have jurisdiction to consider whether or not to revoke the visa cancellation, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As such, it is not relevant for the Court to consider whether or not it agrees with the Tribunal’s decision and would have reached a different decision.
54 Secondly, the onus lies upon Mr DKN to establish jurisdictional error: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 at [35] (the Court).
55 Thirdly, the question of whether a decision by the Tribunal is affected by jurisdictional error must be considered in the particular statutory context within which the decision was made and is a case specific inquiry: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 (AVQ15) at [41(a) and [c)] (the Court). In this regard, the Full Court in AVQ15 emphasised (at [41(c)] that:
The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
56 Fourthly, Allsop CJ (with whom the remainder of the Full Court agreed) explained in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 that:
3. … where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
57 This passage was recently quoted with approval by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [37]), which at [36] also emphasised a passage from Kiefel J’s reasons (as her Honour then was) in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 495 as follows:
(c) To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) [of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)] speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.
(See also DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [25] (Bromberg and Mortimer JJ)).
58 Mr DKN relied upon his affidavit affirmed on 7 April 2020 (first affidavit) identifying the grounds of judicial review. Mr DKN also sought to rely upon his second affidavit attaching medical records with respect to his mental health. I deal with the admissibility of this evidence below at [75]-[77] in the context of considering the ground to which it relates.
59 The Minister relied upon an affidavit of Christopher Orchard affirmed on 16 July 2020 (Orchard affidavit) which attaches a transcript of the hearing before the Tribunal. The applicant said that he did not object to the transcript being in evidence and did not disagree with the accuracy of the transcript.
60 The grounds of judicial review in Mr DKN’s original application (CB1176) and first affidavit simply allege that the Tribunal’s decision was unreasonable, the Tribunal failed to properly apply or exercise the discretion under s 501CA of the Migration Act, the Tribunal failed to take relevant considerations into account, there was insufficient or no evidence to support its finding, and Mr DKN was denied procedural fairness. As such, the grounds are very broadly expressed and fail to specify the nature of the errors allegedly committed by the Tribunal. It follows that the grounds should be dismissed save to the extent that Mr DKN must be taken to have elaborated upon the grounds in his submissions: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); ASI17 v Minister for Immigration [2019] FCA 1235 at [22] (Perry J).
61 It is apparent from Mr DKN’s written submissions that he challenges the Tribunal’s decision on four grounds, namely:
(1) the Tribunal failed to give proper consideration to the best interests of his minor daughter, as a primary consideration;
(2) the Tribunal failed to have regard to the reports of medical experts who were of the opinion that his offending was triggered by severe depression;
(3) the Tribunal exaggerated his convictions contrary to the judge’s sentencing remarks and turned low-level criminal offending into violent, major offending; and
(4) the Tribunal downplayed the impediments which he would face if he were deported and how this would affect the welfare in particular of his daughter and ex-wife.
62 As earlier mentioned, the Minister contends that the grounds in Mr DKN’s written submissions simply seek to challenge the factual merits of the Tribunal’s decision and must therefore be rejected. The Minister also submitted that none of the additional issues raised in arguendo by the Court at a case management hearing, including the Tribunal’s treatment of the psychiatrist report and non-refoulement obligations allegedly owed to Mr DKN, give rise to any jurisdictional error.
63 Finally, in his written submissions Mr DKN also sought to challenge the decision of the Minister’s delegate. The application to this extent must be dismissed because the decision of the Minister’s delegate has been superseded by the decision of the Tribunal.
4.3 Did the Tribunal lawfully consider Mr DKN’s daughter’s best interests (Ground 1)?
64 Mr DKN summarised his submissions with respect to ground one, explaining that:
My daughter’s welfare was not given enough weight. I have a good rapport with my daughter. I also play a crucial role in her life. Part of the three main primary considerations include my daughter’s welfare but less weight was placed upon her welfare as [an] Australian.
(applicant’s submissions at [1])
65 In elaborating upon ground one, Mr DKN first submitted that the Tribunal considered the welfare of his daughter “with ill informed information” because “[t]he Minister’s delegate argued that I was a threat to the welfare of my daughter”, referring to the Tribunal’s reasons at [56] (applicant’s submissions at p 2). The applicant submitted that this was a serious allegation made without a factual basis and that this “resulted in unwarranted negative bias and stigma towards me” (ibid).
66 That submission cannot be accepted. At paragraph [56] of its reasons, the Tribunal in fact found that:
The Respondent contends that [Mr DKN’s] offending involved a crime against a child, constituted by his conviction in 2011 for contravening a prohibition or restriction in a domestic violence order (domestic). There is nothing in the material before me, however, that suggests that this crime was committed against a child.
67 As such, the Tribunal rejected the Minister’s submission that Mr DKN’s conviction in 2011 of a breach of a domestic violence order was committed against a child, finding that there was no evidence to that effect. The mere fact that the submission was made by the Minister in the context of Mr DKN’s application for merits review could not give rise to any perception of bias on the part of the Tribunal. That is self-evidently so where the Minister’s submission was rejected by the Tribunal.
68 Secondly Mr DKN submitted that the Tribunal “change[d] the nature of the [2011] offence from petty to serious” given that his conduct in kissing his ex-wife’s hand was an act of love and contrition in the context of their separation and from a cultural perspective. While he said that he understood now that his actions were “out of line and… not welcome”, he said that such a “peaceful gesture” could not be characterised as an act of violence and did not endanger his daughter. As I have already found, the Tribunal clearly rejected the proposition that the 2011 offence endangered Mr DKN’s daughter. As such, the submission is to this extent premised on a false assumption. Furthermore, for reasons I later explain at [88]-[89], the Tribunal did not err in finding that the offence of common assault of which Mr DKN was convicted in 2011 involved violence, albeit “at the low end of the spectrum” (TR at [52]).
69 Thirdly, as the Minister submitted, the Tribunal considered Mr DKN’s daughter’s position carefully and made clear findings on what her best interests would require. In this regard, the Tribunal accepted the evidence of Mr DKN’s brother that, while an access arrangement was not yet in place between Mr DKN and his ex-wife, “he was confident one could be agreed given Ms J’s expressed commitment to cooperate and work harmoniously to arrange shared custody and parenting” (TR at [125]). The Tribunal also accepted that Mr DKN’s capacity to provide financial support to his daughter might be impaired were he removed from Australia (TR at [137]). However, as earlier explained the Tribunal found that, given that Mr DKN had had no physical contact for at least five years with his daughter, the adverse effect of removal would essentially arise only if Mr DKN were released into the community, obtained and exercised meaningful access rights, and did not re-offend despite the risk of reoffending being a significant one (at [146]).
70 It follows, as the Minister submits, that the decision in Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608 on which Mr DKN relied is distinguishable from the present case. In that case, the Tribunal did not treat the minor children as a primary consideration contrary to the present case, and indeed failed to consider their best interests at all, considering instead what each child would do if their father were deported. As Branson J held at 631:
For example, the AAT concluded that the younger children’s interests in a ‘continuing close and daily relationship with their father’ would be served by his being deported in circumstances in which they would accompany him to Tonga. It reached this conclusion without apparently, having regard to the fact that by so accompanying him they would have to leave the community in which they had lived all of their respective lives, start a new life in a new land, and lose the many benefits available to them as citizens of Australia. As to the older children, the AAT concluded that their best interests would be served by remaining in Australia with their mother, should their father be deported. It reached this conclusion without, apparently, having regard to the break up of their family unit which would flow from their father’s deportation, with consequential restrictions on their subsequent contact with their father and half-siblings and a likely diminution in their father’s capacity to influence and guide them.
(See also 618 (Burchett J))
71 Fourthly, Mr DKN challenged the Tribunal’s description of his relationship with his daughter as “non-parental” (TR at [116]). With respect, the use of that term was unfortunate as it was liable to be misunderstood and regarded by Mr DKN as offensive and inaccurate. However I do not consider that in describing the relationship in this way, the Tribunal fell into jurisdictional error. Read in context, the Tribunal was not denying that Mr DKN loved his daughter, or was suggesting that he had abandoned or neglected her. Rather, the Tribunal described Mr DKN’s relationship with his daughter as “non-parental” because:
(1) Mr DKN’s ex-wife was the daughter’s primary carer;
(2) he had initially no, and subsequently only limited, access to visit her;
(3) he had not seen his daughter for around five years; and
(4) the Tribunal considered that Mr DKN may have overstated his involvement in his daughter’s life, having regard in particular to evidence at Mr DKN’s sentencing hearings in 2015 and 2016.
(TR at [117]-[120])
72 In this regard, I note that it was evident from Mr DKN’s submissions at the hearing that it was enormously important to him to be in a position to maintain and develop his relationship with his daughter. However as I have already said, it is not the function of this Court to consider the merits of the Tribunal’s decision to refuse to revoke the visa cancellation.
73 Finally, Mr DKN submitted with respect to his child support payments for his daughter, that the Tribunal “brushed it away or overlooked it”, submitting that while the payments may not have been large, they showed his concern for his daughter’s welfare (applicant’s submissions at p. 4). However, as the Minister submitted, the Tribunal was aware of, and took into account, the child support payments made by Mr DKN (TR at [122]). No more was required of the Tribunal as a matter of law.
4.4 Did the Tribunal lawfully consider the medical evidence about Mr DKN’s mental health issues (Ground 2)?
74 Mr DKN encapsulated his complaint with respect to ground two of his application for the judicial review as follows:
The Tribunal and the Minister’s delegate purposefully omitted or overlooked crucial medical reports that I submitted. This resulted in them making wrong or flawed assumptions on my current mental health status. My mental health had tremendous effect on my offending behaviour and future. All health professionals that treated me or diagnosed me including a Judge of the law objectively agreed that my offending was triggered by severe depression. Their refusal of professional opinion jeopardised my chances of a positive outcome.
(applicant’s submissions at [2])
4.4.2 Can Mr DKN rely upon medical records about his treatment for mental health issues which were not before the Tribunal?
75 As earlier mentioned, Mr DKN sought to rely upon his second affidavit attaching various medical records relating to his mental health issues in support of Ground 2. While those medical records predate the Tribunal’s decision, it was common ground that they were not placed before the Tribunal by Mr DKN who was then represented.
76 As the Minister submits at [3], the Court will generally consider only the material which was before the Tribunal when it made its decision. This is because new evidence cannot be relied upon on an application for judicial review merely in order to demonstrate that the Tribunal made an error of fact: Minister for Immigration v Tesic [2017] FCAFC 93; 251 FCR 23 at [55] (the Court). As Abraham J explained in BRT19 v Minister for Home Affairs [2020] FCA 449 at [26], “…fresh evidence cannot be adduced on review to contradict evidence before the Tribunal; demonstrate an error of fact by the Tribunal; nor invite this Court to make findings of fact, turning the application in this Court to a merits review”.
77 However, it is clear from the body of his second affidavit and submissions that Mr DKN seeks to rely upon his second affidavit and the medical records attached to it in order to persuade the Court that the Tribunal’s factual finding that he had ceased taking his medication was wrong (second affidavit at [2]). It follows that Mr DKN’s second affidavit and attached medical reports cannot establish a jurisdictional error and therefore are not relevant. For this reason I decline leave to permit the second affidavit to be read in support of Mr DKN’s application.
4.4.3 Did the Tribunal err in its treatment of the medical evidence?
78 Mr DKN contends first that the Tribunal was mistaken in finding that he had stopped taking his medication, referring to “a slight confusion during my hearing and I stopped taking other medications including antidepressants but not the mood stabiliser” (applicant’s submissions at p. 7). However, as the Minister submitted, the Tribunal’s finding accurately reflected the position explained by counsel for Mr DKN in answer to a question from the Tribunal, namely, that “he is not currently on any medication in respect of any underlying mental health issues currently”: transcript of the Tribunal hearing on 23 March 2020 at p 59.19-21, annexure CEO1 to the Orchard affidavit. As such, the Tribunal had a probative basis for finding that Mr DKN “no longer takes any medication for mental health issues” (TR at [94]). Furthermore, I agree with the Minister’s submission that the finding that Mr DKN was no longer taking medication was not material in the sense that it was not a critical step in the Tribunal’s ultimate conclusion: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63]-[73] (the Court). Specifically:
(1) While the Tribunal accepted that Mr DKN has had mental health issues and that there was a causal link between those issues and his offending, the Tribunal considered that Mr DKN’s submission exaggerated the significant of the causal link. This was because, at least with respect to Mr DKN’s recent offending, “substance abuse obviously played a central role” (TR at [89] (quoting from the 2016 sentencing remarks of Wilmoth J at [42]).
(2) Furthermore, the Tribunal approached the question on the basis that Mr DKN’s ongoing mental health depended upon his willingness to “seek and engage with appropriate treatment outside an institutional context”, that is, when in the community (TR at [98]). Given Mr DKN’s history, however, the Tribunal considered that “any faith in his doing so may well be displaced” (TR at [98]). (I consider later Mr DKN’s challenge to the Tribunal’s reference to “ongoing responsibility” with respect to treatment for his mental health issues.)
79 Neither of these findings would be affected by the Tribunal’s finding that Mr DKN was not taking medication at the time of the Tribunal hearing, as the Minister submitted (Minister’s submissions at [43]). It follows that even if the Tribunal erred in the manner alleged by the applicant, the error was not material and did not give rise to a jurisdictional error.
80 Secondly, as earlier mentioned, Mr DKN submitted that the Tribunal fell into error in giving the report of the psychologist, Mr Taylor, no weight (T23.14-15). In this regard, the Tribunal found at [81] that it did not attribute “any weight” to the opinions of Mr Taylor that Mr DKN “is at no discernible risk to the community or of reoffending in any way” and that the risk of him reoffending “can be reasonably assessed as non-existent” (TR at [80]). It reached this conclusion for a number of independent reasons, each of which is rational, logical, and had a probative basis in the evidence, as follows.
(1) The Tribunal considered that Mr DKN had not shown how Mr Taylor’s expertise applied to the facts so as to produce his opinions (at [81]). This conclusion was plainly open to the Tribunal given that the task of assessing the likelihood of Mr DKN reoffending involved an evaluative judgment having regard to all of the circumstances, and was not confined to a consideration of those matters likely to fall within Mr Taylor’s field of specialised knowledge (at [81]). Nor, the Tribunal found, had Mr Taylor employed widely accepted risk needs and objective risk assessment tools (TR at [81]).
(2) The Tribunal also found at [82] that “quite apart from the issue concerning Mr Taylor’s expertise, in arriving at his opinions, Mr Taylor relied on matters of fact unsupported by material before me.” For example, the Tribunal found that the material before it did not support Mr Taylor’s statement that Mr DKN had engaged in a substantial rehabilitation programme; Mr Taylor’s statement that Ms J, Mr DKN’s ex-wife, was unconditionally supportive of shared parenting with Mr DKN did not accurately reflect the factual position before the Tribunal; and the material before the Tribunal did not support Mr Taylor’s statement that Mr DKN had a solid occupational history and excellent work prospects (TR at [82]). Furthermore and related to this, the Tribunal found that its capacity to give weight to the opinions expressed by Mr Taylor was not assisted by his failure to identify the sources of the factual information on which he relied contrary to the Tribunal’s guideline concerning expert opinion evidence (TR at [83]).
81 Either of these grounds would have sufficed in law to support the Tribunal’s conclusion that it could not give any weight to Mr Taylor’s opinions as to the likelihood that Mr DKN might reoffend.
82 Thirdly, Mr DKN submitted that the Tribunal wrongly blamed him despite the fact that he was a patient and his cognitive health was very poor at the time (applicant’s submissions at p. 8). He also said that the system failed him “dismally” because his diagnosis was not “acted on promptly” and, “[a]s a patient, I did not understand the gravity of the situation” (ibid).
83 I accept the Minister’s submission that, read in context, no error is evident from the Tribunal’s finding at [92] that Mr DKN “had a personal responsibility to seek and follow treatment” for his mental health issues. Mr DKN had submitted before the Tribunal that there was little risk of him re-offending because his most recent offending occurred before his mental health issues were diagnosed and that he is now addressing those issue via his engagement with a mental health care plan. As such, Mr DKN effectively submitted that, following his diagnosis, he was taking responsibility for his mental health issues. The Tribunal rejected that submission, finding that Mr DKN’s mental issues were diagnosed before 2016 when his most recent offending occurred and that a form of treatment had been prescribed (olanzapine). The Tribunal then found that “[i]n any event, [Mr DKN] would have been aware that he had mental health issues at least as early as 2013 and had a personal responsibility to seek and follow treatment for them.” The Tribunal’s comment as to the need for Mr DKN to take personal responsibility for these issues is explained by the following sentence in the Tribunal’s reasons that Mr DKN had failed to heed the warning given to him by the sentencing judge about the need to take medication in November 2015. This warning had also previously been given by a prison psychiatrist while Mr DKN was still in remand. As the Minister submitted, the reference to personal responsibility at [92] was merely to show that Mr DKN’s failure to take steps to address his mental health issues were part of the relevant background to his offending, in line with the sentencing judge’s remarks in 2016.
84 Finally, an issue was raised in arguendo at a case management hearing as to whether there was any inconsistency between the Tribunal’s treatment of the Taylor report, on the one hand, and its conclusion at [88] that there was a causal link between Mr DKN’s mental health issues in his offending, on the other hand. I accept the Minister’s submission that there is no inconsistency. As the Minister submitted:
The fact that the AAT found “a causal link” between the Applicants mental health issues and his offending (AAT [88]) does not mean that the AAT is required to give any weight to Mr Taylor’s opinion as to the likelihood of the Applicant reoffending. Again, the AAT found that the opinion in Mr Taylor’s report on the risk of reoffending was contrary to the facts as found by the AAT, and Mr Taylor had not identified his sources of factual information.
It is true that AAT [81] states that Mr Taylor’s opinions about the likelihood of the Applicant reoffending are not based wholly or substantially on his expertise. However, read together with AAT [97], it is apparent that a major concern of the AAT was that Mr Taylor’s remarks on extraneous matters indicated that he was not acting simply as an independent expert giving an opinion impartially on matters within his field of expertise. Further, the AAT is correct in stating in AAT [81] that the ultimate question of the likelihood of offending is an evaluative judgment for it. That is because the AAT is required to consider the cumulative effect of the nature of harm as well as its likelihood (Direction No 79 para 13.1.2(1): AB 201).
(Minister’s submissions at [52]-[53]; emphasis in the original)
4.5 Did the Tribunal lawfully consider Mr DKN’s convictions (Ground 3)?
85 With respect to ground three, Mr DKN contends that the Tribunal erred in its assessment of the seriousness of his offending. He summarised his submissions as follows:
The Tribunal… extremely exaggerated my convictions and made me look like a monster by applying unnecessary legal jargon and going against sentencing remarks of a learned Judge of the law. By twisting words and complicating a trivial matter. They turned low-level criminal offending into major offending. Hasty generalisation of facts into a blanket opinion and yet the details of my offending are not grey but rather available in black and white. [“ Violence – behaviour involving physical force intended to hurt, damage, or kill someone or something. Synonyms: brutality, bloodshed, savagery, fighting” ] Source Oxford Dictionary. My offending was non-violent but somehow. The Tribunal… managed to turn my offending into serious heinous offending.
(applicant’s submissions at [3])
86 In support of his submissions, Mr DKN referred to the decision in Walker v Minister for Home Affairs [2020] FCA 909 at [25]. In that case, Bromwich J held that the Minister had erred in conflating the applicant’s non-violent conduct on the one hand, with the violent outcome of that conduct, being the manslaughter offence. As a result, his Honour held that “[t]he [Minister’s] reasoning of predicting the risk of a future event based upon a past event that did not occur is unavoidably irrational, and the decision made upon that basis is thereby legally unreasonable…” (at [25]).
87 That case is distinguishable from the present because the Tribunal assessed the conduct, being the stalking offences themselves, as being violent even though Mr DKN did not carry out his threats (TR at [46]-[48]). Specifically, the Tribunal rejected Mr DKN’s submission that the 2016 carriage service offences were not crimes of violence because they did not involve actual violence and found instead that:
46. The concept of “violence” is not one that appears to have been the subject of exhaustive definition. Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.” Hence, an act of violence includes “… acts of intimidation and menaces as well as physical force.”
47. [Mr DKN] did not dispute this interpretation of the word “violence” at common law but did contend that, in the context of Direction 79, the word only encompassed physical violence. No basis for this approach to the construction of Direction 79 was, however, identified and I reject it.
48. [Mr DKN]’s carriage service offences involved or, at least included, acts of intimidation and menace. As a result of [Mr DKN’s] conduct in early 2015 police officers “reported feeling threatened, harassed and intimidated” while one particular officer “felt apprehension and fear for her safety.” The same may be said of the stalking offence in respect of which [Mr DKN] was convicted in June 2016. A consequence of it was that a member of the public felt very vulnerable and feared for his family and staff.
(citations omitted)
88 No error is apparent in the Tribunal’s reasoning in this regard. The Tribunal has a broad scope under s 501CA of the Migration Act to assess the seriousness of offending within the boundaries of rationality. As Wigney J held in Te Puke v Minister for Immigration [2015] FCA 398; (2015) 230 FCR 499 (Te Puke) at [96], it was entirely open to the decision-maker (being in that case the Minister) to form her or his own view about the seriousness of the offence based on the objective facts notwithstanding the sentencing judge’s findings concerning the seriousness of the offence. Equally it was entirely open to the decision-maker to decide what facts she or he considered relevant to that issue and the weight to be afforded to them. Nor was the Tribunal under an obligation to evaluate in any particular way the risk of harm to the Australian community of the applicant reoffending: BSJ16 v Minister for Immigration [2017] FCAFC 78; (2017) 252 FCR 82 (BSJ16) at [43] (the Court). Furthermore, the breadth of the Tribunal’s scope to assess the seriousness of offending is not limited by any definition in Direction 79 of “crimes of a violent nature”. That being so, the Tribunal did not err in looking to the common law to assist it in considering whether Mr DKN’s offences were of a violent nature. In this regard, as the Tribunal considered, at common law an act of violence includes “acts of intimidation and menaces as well as physical force”: Director of Public Prosecutions (Vic) v Perry [2016] VSCA 152; (2016) 50 VR 686 at [40] (the Court) (approving R v Butcher [1986] VR 43 at 53; (1985) 16 A Crim R 1 at 11). Moreover, even outside the context of the common law, the Oxford Dictionary (on-line) defines “violent” to include “[o]f a person’s demeanour, expression, etc.: indicating a willingness to use violence”. As such, it cannot be said that the Tribunal’s finding that the 2015 carriage service offences and the 2016 stalking offence were crimes of violence was irrational and beyond the bounds of legal reasonableness.
89 Similarly, it was open to the Tribunal to conclude that the unwelcome physical touching (kissing on the hand and forehead) the subject of the 2011 common assault conviction, was inherently violent and therefore must be viewed very seriously under para 13.1.1(1)(b) of Direction 79. This is especially so where that assault occurred in the context of the breakdown in Mr DKN’s relationship with his ex-wife (TR at [53]).
90 Finally, contrary to Mr DKN’s submissions at p. 10, the fact that he was granted parole by a parole board applying a different statutory test directed to a different issue does not suggest any error in the Tribunal’s assessment of the seriousness of Mr DKN’s conduct. To hold otherwise would be inconsistent with the width of the evaluative task entrusted to the Tribunal as explained in Te Puke and BSJ16 above.
4.6 Did the Tribunal lawfully consider the impediments which Mr DKN would face if returned and their impact on his daughter and ex-wife (Ground 4)?
91 Finally, Mr DKN submitted that:
… The Tribunal downplayed the impediments that I face if I was to be deported and how this would affect the welfare of my loved ones. My daughter and ex-wife will be devastated the most because of that and their welfare also falls under the Minister. The Minister is not just responsible for deportation but the welfare of the communities he intends to protect. My daughter and family who resided here full under the Minister’s protection as well. The problems that I face in Morrocco [sic] partially affect the welfare of my daughter and my extended family.
(Applicant’s submissions at p. 13)
92 In this regard, while the Tribunal accepted that Mr DKN would suffer initial difficulties in re-establishing himself in Morocco, it also noted a number of factors that would reduce those difficulties, including that Mr DKN had spent a substantial part of his adult life in Morocco and would have at least some support network there including his father (TR at [179]). The Tribunal also accepted that he would be likely to suffer emotional hardship by reason of being separated from his Australian resident family and support network (TR at [180]). On the question of whether that hardship would exacerbate or reignite Mr DKN’s mental health issues, the Tribunal considered that the answer was unclear. Mr DKN submitted that he would become severely depressed, and that his ongoing mental health issues required ongoing treatment (TR at [181]). However, the Tribunal noted that Mr DKN did not currently take medication to address his mental health issues (TR at [182]). In any event the Tribunal considered that there was nothing to suggest that the required treatment would be unavailable in Morocco, even if medical care at the same level as in Australia may not be accessible to Mr DKN (TR at [183]). As a result, the Tribunal found that the impediments to Mr DKN’s return weighed in favour of revocation, but not significantly so (TR at [184]).
93 There is no irrationality or other jurisdictional error revealed by the Tribunal’s reasons for so concluding. Equally for the reasons earlier given, the decision did consider the impact of Mr DKN being returned to Morocco upon his daughter and no legal error is apparent in its consideration of that issue: see above at [69]-[73]. Mr DKN’s submissions ultimately therefore go no higher than to express his strong disagreement with the Tribunal’s decision. However for the reasons I have earlier given, it is not open to the Court on judicial review to revisit the merits of the Tribunal’s reasons and consider whether or not it agrees with the Tribunal’s findings of fact and assessment of the weight to be given to the Primary and Other Considerations. This is not a case where the applicant has established that the Tribunal failed to consider a substantial and clearly articulated argument that refusal to revoke the cancellation decision would cause hardship, in contrast to the decision in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [31]-[32] (Rangiah J) and [75] (Colvin J) on which Mr DKN relied in his submissions at p. 13.
94 Finally, the Minister accepted that the Tribunal was obliged to consider any clearly articulated and substantial representation by Mr DKN to fear harm if returned to Morocco: see e.g. EVK18 v Minister for Home Affairs [2020] FCAFC 49 at [14] (the Court). In this case the Tribunal did consider Mr DKN’s claims to fear harm “quite apart from the issue of non-refoulement obligations” and any possible future application for a protection visa (TR at [164]). However, the Tribunal found that Mr DKN’s claims to fear harm were so “ephemeral” that it was not possible to take those claims into account in any material way in favour of revoking the cancellation decision (TR at [164]). This was because, as the Tribunal explained at [161], Mr DKN simply did not know whether there was a risk of harm from the Moroccan gang if he were returned and claimed no more than there might be a risk of this kind.
95 It follows for these reasons that the application for the judicial review must be dismissed. Mr DKN is to pay the Minister’s costs as agreed or assessed because the Minister has successfully resisted the application challenging the Tribunal’s decision.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
