Federal Court of Australia

VKTT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1437

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

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

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an amended originating application dated 17 August 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (AAT) made on 20 March 2020. The AAT affirmed a decision of the Minister’s delegate not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). This is the second AAT decision in relation to the delegate’s non-revocation decision. A previous AAT decision (VKTT v Minister for Immigration and Border Protection (Migration) [2018] AATA 3377) was set aside by this Court in VKTT v Minister for Home Affairs [2019] FCA 1018; 166 ALD 443. The second AAT decision represents the decision made on remittal by a differently constituted tribunal.

2    For the following reasons, the amended originating application will be dismissed, with costs.

Summary of background facts

3    The applicant is a 41 year old New Zealander who arrived in Australia in March 2006. He has a long and serious criminal history in both New Zealand and Australia, having been convicted of 46 offences in his country of origin and 16 offences in Australia. There is no dispute that the applicant did not pass the character test because he had a substantial criminal record (see ss 501(6)(a) and (7)). For the purposes of s 501CA(4), the central issue for the AAT was whether there was “another reason” why the mandatory cancellation decision should be revoked. It was also common ground that, in determining this issue, the AAT was bound to comply with Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of visa under s501CA (Direction No. 79).

4    In its second decision, the AAT (constituted by a Deputy President) gave comprehensive and detailed reasons for decision, totalling 94 pages (see VKTT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649). It will be necessary to say something more about relevant parts of those reasons. Suffice it to say at this point that the AAT was not satisfied that there was “another reason” to revoke the cancellation decision. The AAT’s essential reasoning is captured in the following concluding paragraphs of its reasons for decision:

438.    In this matter the Tribunal has had to assess the negative impacts that non-revocation will have on the Applicant’s family with the risk that revocation poses to the Australian community should the Applicant revert to his past criminal conduct.

439.    The Tribunal has carefully assessed the evidence and given due attention to how the various considerations should be weighed individually and then cumulatively. This has not been an easy exercise, and the Tribunal acknowledges that the decision reached carries with it some undoubted hurt and harm for some members of the Applicant’s family.

440.    However, the risk that the Applicant poses to the Australian community far outweighs any family considerations. The Applicant has a long history of offending in Australia and New Zealand. He has a history of committing violent crimes.

441.    The Applicant has demonstrated throughout his life a good work ethic and has been, at times, a caring parent, a loving son and a good friend. Despite his upbringing, he has been, generally, a good role model for those he has befriended.

442.    It is regrettable to conclude that the good deeds the Applicant has performed, and all of the decency he has shown to his family, friends and those in need, fall away when he mixes with bad company and alcohol and drugs change his personality. It seems that the Applicant is a weak man and when he falls into bad company his persona changes. This transformation is complete if he uses alcohol, but more particularly drugs. His methamphetamine induced criminal spree in 2014 – 2015 was the culmination of his associating with criminal elements and using illegal drugs.

443.    The Tribunal cannot be assured that this will not happen again. It has been, unfortunately, part of pattern of behaviour over a long period. Certainly the Applicant has made an effort to rehabilitate himself, and in the controlled environment of an immigration detention centre, his transformation seems assured. However, once he returns to the community and the constraints imposed by detention are removed, there can be no guarantees that he will not revert to his previous ways. It is a real risk and not an insubstantial one.

444.    The safety of the Australian community is of paramount concern and is the bedrock issue in applying the Direction properly. This is particularly the case if the risk posed to the community is one of the commission of violent crime.

5    As will be explained, it emerged during the course of the hearing that the applicant’s judicial review challenge is a complaint of procedural unfairness arising from the AAT’s assessment of expert evidence given by a clinical psychologist (Mr Mercurio Cicchini) at the first AAT hearing, but which was placed before the second AAT.

The applicant’s judicial review challenge

6    In the present proceeding, the applicant’s initial originating application, which was filed on 24 April 2020, adopted an orthodox approach in that it clearly identified four grounds of judicial review, each of which was particularised.

7    The same cannot be said about the amended originating application. Instead of clearly setting out the individual grounds of judicial review, in its terms that document purported to provide “primary”, “secondary” and “further” submissions. This had the effect of obscuring the precise grounds of judicial review raised by the applicant.

8    Prior to the hearing in the Court, the applicant provided a separate four page document headed “SUBMISSIONS OF THE APPLICANT”, dated 19 September 2020. If anything, that document further obscured the applicant’s case. It is divided into the following three parts: the first headed “MAKING FINDINGS IN THE ABSENCE OF EVIDENCE”, the second headed “MAKING UNREASONABLE FINDINGS – GROUNDS 8-11” and the third headed “ORDERS SOUGHT”. It was difficult to reconcile the written submissions with the terms of the amended originating application. The task of divining the heads of judicial review was further complicated by that document.

9    The difficulty did not end there. The applicant then provided an additional document dated 1 October 2020, which was headed “AMENDED FINAL SUBMISSIONS OF THE APPLICANT”. This document purported to provide entirely different submissions in chief (which were not tracked to show the differences from the original outline of written submissions), as well as submissions in reply (which were tracked). This document appeared to indicate that procedural unfairness was the only judicial review ground pursued by the applicant, notwithstanding that the earlier documents indicated that this was only one of several judicial review grounds relied upon by him.

10    When the Court raised these matters with the applicant’s senior counsel at the commencement of the hearing, he confirmed that procedural unfairness was the only ground of judicial review pressed by the applicant. The case was then conducted on that basis.

The applicant’s submissions summarised

11    As noted, the applicant belatedly provided an amended outline of final submissions, together with a reply to the Minister’s outline of submissions. The amended document (without alteration) is as follows:

1.    The Administrative Appeals Tribunal (“the tribunal”) accepted the evidence of Mr Cicchini that the applicant was suffering from post-traumatic stress disorder (page 94 para 245).

2.    The tribunal found that it lacked confidence that the applicant was no longer a risk to the Australian community and found that there was a significant likelihood that he would revert to his past habits and commence reoffending (page 95 Para 251).

 3.    The tribunal then went on to say:

"in reaching this conclusion, the tribunals notes that it was not provided with contemporaneous expert evidence supporting the applicant's claim that there is a low risk of recidivism if he is released into the community" (para 252 page 95).

4.    This finding was based upon material first appearing at paragraph 206 (page 85) concerning the predictions of the risk or likelihood of future offending based upon what the tribunal described as "various instruments of risk prediction" (paragraph 207-page 86).

5.    The tribunal also drew conclusions as to what it called "unstructured and unguided clinical opinions by both psychiatrists and psychologists on the risk of future offending are marked by high rates of false-negative findings" and referred to a publication in a law review (see paragraph 206 page 86).

 6.    The tribunal went on to assert:

"as a result of these concerns, various instruments of risk prediction have been developed. These actuarial approaches to risk assessment have generally been found to be more accurate than unstructured clinical judgements and are designed to promote predictive validity and reliability" (para 207 page 86).

7.    The tribunal then went on to consider judgments in the Western Australian Supreme Court and in the New Zealand Court of Appeal (see paragraphs 208 and 209 page 86).

8.    The tribunal dismissed the relevance of Mr Cicchini (210 and 211 page 86 and 87) making it clear that this was because his conclusions were not made with reference to the utilisation of any actuarial predictive instruments and because the tribunal considered, adopting the reasoning of the New Zealand Court of Appeal, that it was not bound by his opinion.

9.    These findings of the tribunal, together with the determination it made at paragraph 252, denied the applicant procedural fairness. His case was based to a great extent on the opinion of Mr Cicchini and at no point in evidence or subsequently was any suggestion made that Mr Cicchini's evidence was unacceptable because he did not give reference to actuarial approaches to risk assessment. There was no evidence at all that such approaches were correct or desirable.

10.    Findings about the acceptability of such evidence could be made, in my submission, only if there were evidence of an expert type that supported such material.

11.    The tribunal, in my submission, was not entitled in the absence of any evidence to come to these conclusions and then use these conclusions to reject the evidence of the only expert witness who was called.

12.    What was done denied the applicant procedural fairness. If the tribunal considered this material was relevant, it had an obligation to make known to the parties its views and to give the parties an opportunity to call evidence and make submissions about the views of the tribunal.

13.    The likelihood of reoffending was directly relevant to the applicant's case because it dealt directly with the subjects of the risk to the Australian community should further offences be committed and the expectations of the Australian community.

14.    The introduction by the tribunal of its own evidence, and the making of findings by it on that evidence, denied the applicant any chance of establishing that he was not a future risk to the Australian community and that the Australian community would not have an expectation that he be removed from the country.

15.    I would submit also that the submissions made in paragraphs 8 to 11 of the Amended Submissions should be accepted. In my submission it is clear that the findings made by the tribunal, which are referred to in those paragraphs, were influenced by its improper introduction of evidence to which I have referred above. The bleak opinions about the applicant were clearly influenced by the tribunal’s view that reform was unlikely because actuarial evidence had not been presented to show its likelihood.

16.    The appeal should be upheld, certiorari granted, and the matter referred to the tribunal for hearing by a member other than the member who heard the second application.

REPLY

17.    I would rely on Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2020 FCAFC 144 esp. at para 29, a decision of the Full Court. The fact that the respondent indicates in its submissions an intention to seek special leave in no way diminishes the authoritativeness of the decision.

18.    The respondent claims that “the inherent risks of an unstructured personal assessment of risk of future offending are matters of common senses and are uncontroversial”. In my submission that statement of the tribunal was based on a premise that actuarial approaches to risk assessment “have generally been found to be more accurate than unstructured clinical judgments and are designed to promote predictive validity and reliability” (para 207 p 86).

19.    The qualification “generally”, itself indicates that actuarial approaches do not always have that certainty contended for by the Tribunal and in any event, if findings are to be made on the basis of actuarial studies, clearly what is involved is expert evidence not matters of common sense. No expert evidence was called, and no warning was given that a finding was going to be made on the basis of a failure to use a predictive system based on actuarial studies.

20.    The authorities to which the Respondent refers in para 26 of its further submissions do not support the propositions that are put. In fact they establish the force of the Applicant’s submissions because they show the uncertain nature of such evidence and the need for proof before it is accepted.

21.    Contrary to the Respondent’s claim the applicant is not pursuing a no evidence ground. Rather, the applicant is pointing out that the Tribunal introduced of its own accord and without notice, evidence of a method of assessment and then, without any submissions on its validity, it approved of it and made findings adverse to the applicant.

22.    The tribunal denied procedural fairness.

12    Given that procedural unfairness was the only ground raised by the applicant, his senior counsel confirmed in oral submissions that the reference to Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 was entirely in response to what the Minister had said in his outline of written submissions when the Minister believed (understandably) that the applicant’s case was not confined to procedural unfairness.

The Minister’s submissions summarised

13    It is unnecessary to set out the Minister’s submissions, insofar as they relate to procedural unfairness, because they are substantially reflected in my reasons for dismissing the amended originating application.

Consideration and determination

14    It is desirable to first set out s 501CA(4), which provides for the circumstances in which a visa cancellation decision may be revoked:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

...

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

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

   (b)    the Minister is satisfied:

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

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

Relevant parts of AAT’s reasons

15    The applicant was selective in the paragraphs of the second AAT reasons for decision which he said were relevant to his procedural unfairness complaint. Some earlier extracts from the those reasons which bear upon the procedural unfairness complaint should also be noted (without alteration):

196.    The Applicant has had the benefit of psychological counselling. In particular, the Applicant has been treated by Mr Mercurio Cicchini, Clinical Psychologist. Unfortunately, though the Applicant indicated (Exhibit 2 p. 4) that Mr Cicchini would testify at the Hearing he was not called to give evidence. Nonetheless, the Tribunal had the benefit of being provided with a report of Mr Cicchini dated 25 October 2017 and the transcript of his evidence given at the previous Tribunal Hearing on 18 December 2017.

197.    At the time of his 25 October 2017 report, Mr Cicchini had consulted with the Applicant on seven occasions between August and October 2017. Mr Cicchini opined that the Applicant was suffering the symptoms of Post-Traumatic Stress Disorder (PTSD) related to his history of serious injury from assaults on several occasions. Mr Cicchini made the following observations – Exhibit 1 AB15 p. 807:

“[VKTT’s] victimization experiences whilst in custody in Queensland have had a cumulative affect on his anxiety and concern for his safety, but paradoxically, these events have produced a strong desire to rehabilitate himself by distancing himself from antisocial activities and peers, and he plans to undertake relevant education in order to offer positive mentorship to youth in the future.”

198.    At the Hearing of 18 December 2017, Mr Cicchini was asked to expand on the above quoted opinion and he gave the following testimony – Exhibit 1 AB21 p. 974:

“Well, I suppose in his presentation with me, he kind of engaged in quite a lot of retrospective review of his life, and things that have transpired in his life, and I suppose taking responsibility for some of the events that led early in his life into sort of venturing into the wrong peer group, and into events that weren’t all that constructive. So basically, what I observed is a maturational process sort of starting to manifest, where he is able to analyse and look back upon his life and see the error of his ways, I suppose, or the decisions that he has made in the past that have not been that productive, and making a decision to learn from that and to try new things in the future that are more productive and helpful, and to contribute more positively to the community than he had earlier in his life. So they’re the sort of manifestations I observed.”

199.    Subsequently, Mr Cicchini expanded upon the maturational process undergone by the Applicant – Exhibit 1 AB21 p. 974:

“… And having seen thousands of offenders over the years, I know that only some of them go through that process as they mature, where they sort of start, I suppose, seeing the mistakes and decisions they’ve made that have been unhelpful. One of the ways that they try to kind of come to terms with that is by not engaging in a lot of the peer activities in the institutions where they are. And I saw that in [VKTT] as well, that he doesn’t particularly want to engage too much with fellow detainees, because he has own sort of ideas about where he wants to go in the future and what he wants to do, and he doesn’t want to be influenced by peer influences.”

200.    Finally, Mr Cicchini agreed with the proposition that only a small number of inmates, from his experience, go through this maturation process, and then the following exchange occurred – Exhibit 1 AB21 p. 975:

“And what I’m wondering is, in [VKTT’s] case, how would you see that, in terms of his, to put it another way, likelihood or unlikelihood of offending against laws?---Well, I think it’s a sign of maturation, a sign of growth. It’s very positive and encouraging, and it gives hope for the future. In o other words, the signs that I saw are excellent, and very promising.”

201.    Mr Cicchini also agreed with the proposition that family support and assistance would be very helpful to the Applicant in ensuring that he maintained a law-abiding life if he remained in Australia – Exhibit 1 AB21 p. 975.

202.    Whilst Mr Cicchini gave positive testimony in 2017 about the risk of the Applicant reoffending, there are some problems with this evidence.

203.    Mr Cicchini was not called to give evidence before the Tribunal on this occasion, and, as such, it is not possible for the Tribunal to conclude with certainty that the positive views he held in 2017 remain constant.

204.    Further, this report and evidence of Mr Cicchini are now dated. The report of Mr Cicchini was prepared in October 2017, and by the time of this Hearing was over two years old.

205.    The Tribunal was not presented with any contemporary psychological reports.

16    The relevant paragraphs from the AAT’s reasons for decision which the applicant identified are [206]-[211], [245], [249], [251]-[252], [325], [440] and [442] (without alteration):

206.    The prediction of the risk or likelihood of future offending is an inherently difficult and somewhat imprecise, exercise. It has long been recognised that unstructured and unguided clinical opinions by both psychiatrists and psychologists on the risk of future offending are marked by high rates of false-negative findings – Cocozza and Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084.

207.    As a result of these concerns, various instruments of risk prediction have been developed. These actuarial approaches to risk assessment have generally been found to be more accurate than unstructured clinical judgments and are designed to promote predictive validity and reliability.

208.    There are a plethora of judgments that both recognise the utility of adopting a more structured and actuarial approach, but nonetheless recognise that even by the adoption of such an approach there can be no guarantee that the risk assessment will be accurate and reliable– see Director of Public Prosecutions (WA) v Moolarvie [2008] WASC 37 at [41]. In Director of Public Prosecutions (WA) v GTR [2007] WASC 318 McKechnie J observed (at 111]:

“The qualifications and limitations on the use of predictive models in the evidence speak for themselves….”

209.    The New Zealand Court of Appeal in Barr v Chief Executive of the Department of Corrections [2006] NZCA 313 (at [24]) made these observations:

“… it is not a health assessor who determines these applications, but of course the opinion of such an expert is required. Yet in the end it is for the Judge to make up his or her own mind after hearing all the evidence and considering all the statistical, historical and current circumstances to decide whether the pre-condition for making the order exists. The Court has to ask whether it is satisfied, having considered the matters addressed in the health assessor’s report, and any other evidence, whether the offender is likely to commit any of the relevant offences. It requires a measured independent judgment on the part of the Judge, weighing up all the relevant circumstances.”

210.    The Tribunal found the testimony and report of Mr Cicchini to be of assistance. However, the Tribunal is not, as the New Zealand Court of Appeal made clear, bound by his opinion about the Applicant’s likelihood of reoffending.

211.    Unfortunately there is no evidence before the Tribunal that Mr Cicchini’s conclusions were made with the benefit of the utilisation of any actuarial predictive instruments. Instead, Mr Cicchini’s opinions were based on his own judgment. As that judgment was made more than two years ago, and the Tribunal did not have the benefit of receiving any contemporary evidence from him, the weight that can be placed on Mr Cicchini’s evidence is less than it otherwise would have been.

…

245.    The Tribunal accepts Mr Cicchini’s diagnosis that the Applicant is suffering from PTSD. Whilst the Tribunal did not have the benefit of receiving testimony from Mr Cicchini, it is tolerably clear that the traumatic events surrounding the Applicant’s childhood and near death experience when he was attacked by gang members in New Zealand has resulted in psychological injury. Certainly, the subsequent attacks the Applicant suffered whilst in custody in Queensland would have further exacerbated his underlying mental illness.

…

249.    The evidence suggests that when the Applicant is in a controlled environment and is receiving regular assistance, his underlying mood and psychological issues improve. However, once he is released into the community and is no longer in a controlled and managed environment, the problems that have been a hallmark of his life reappear. Consequently, while the Tribunal is satisfied that he has made improvements in his life since he has been in immigration detention, his past actions do not give the Tribunal confidence that the likelihood of him engaging in further criminal or other serious conduct has been significantly reduced.

…

251.    The Tribunal has formed the view that whilst the Applicant has taken steps to rehabilitate himself, it is not confident that he is no longer a risk to the Australian community if he is released. At its highest, the Tribunal accepts that the treatment the Applicant has received whilst in immigration detention has reduced the risk of him reoffending, but it cannot be said with confidence that there is not a likelihood that, in time, he would go back to his criminal habits. Indeed, if the past is any predictor of the future, then there is a significant likelihood that the Applicant will revert to his past habits and commence reoffending.

252.    In reaching this conclusion, the Tribunal notes that it was not provided with contemporaneous expert evidence supporting the Applicant’s claim that there is a low risk of recidivism if he is released back into the community.

…

325.    However, central to cl 13.3(1) is the community’s expectation that non-citizens obey the law. The fact that a non-citizen has broken the law will not necessarily mean that there is a community expectation that a non-revocation decision will be made. However, where, as in this case, a non-citizen has an extensive history of crime, and where that non-citizen has been convicted of crimes of violence then, prima facie, there is a community expectation that such a non-citizen should not retain the benefit of living in Australia.

…

440.    However, the risk that the Applicant poses to the Australian community far outweighs any family considerations. The Applicant has a long history of offending in Australia and New Zealand. He has a history of committing violent crimes.

…

442.    It is regrettable to conclude that the good deeds the Applicant has performed, and all of the decency he has shown to his family, friends and those in need, fall away when he mixes with bad company and alcohol and drugs change his personality. It seems that the Applicant is a weak man and when he falls into bad company his persona changes. This transformation is complete if he uses alcohol, but more particularly drugs. His methamphetamine induced criminal spree in 2014 – 2015 was the culmination of his associating with criminal elements and using illegal drugs.

Mr Cicchini’s report and evidence

17    The applicant’s procedural unfairness complaint focusses upon the AAT’s reasons in assessing a brief “report” dated 25 October 2017 by a registered clinical psychologist, Mr Mercurio Cicchini and the evidence given by Mr Cicchini at the first AAT hearing. Mr Cicchini was not called as a witness in the second AAT hearing even though the applicant had indicated that he proposed to do so. A copy of the one and half page report, together with a transcript of Mr Cicchini’s oral evidence at the first AAT hearing, was provided to the second AAT. It is also important to note that the applicant made clear to the second AAT in his closing written submissions dated 18 December 2019 (which were provided after the second AAT’s hearing held over three days in November 2019) that he relied “upon all material and evidence put before the Tribunal in October 2018, including the transcripts of oral evidence”.

18    Omitting formal parts and redacting the applicant’s name, Mr Cicchini’s “report” was as follows:

TO WHOM IT MAY CONCERN

Re: [The applicant]

This is to confirm that [the applicant] has engaged my services for Psychological treatment in regard to his being assaulted and physically and psychologically injured whilst in custody in the Queensland Prison system in 2016.

[The applicant] is currently in immigration detention at the Yongah Hill Detention Centre, Northam, Western Australia.

Funding support for Psychological services has been made available by Victim Assist Queensland, a State Government authority.

[The applicant] outlined his treatment needs at Yongah Hill on July 18th, 2017. Therapeutic consultation visit it took place on the following dates: August 11, 2017; September 1, 2017; September 8th, 2017; September 15, 2017; September 29, 2017; October 6, 2017; October 20, 2017. An assessment of [the applicant’s] need and desire for a continuation of treatment will occur in the future.

Attention is drawn to the fact that [the applicant] has been suffering symptoms of Post­ Traumatic Stress Disorder related to his history of serious injury from assaults on several occasions. He has reality-based anxieties about being returned to New Zealand because on November 24, 2005, in New Zealand, he was attacked outside his home with weapons by several men, resulting in serious injury including a fractured skull from a machete blow and a penetrating wound to his stomach. (Police records of the incident have been sighted). Those events prompted [the applicant] to move to Australia in February 2006 for a safer life.

A summary report (19/12/2016) by Sonia Kiriyanthan, Counsellor with the Torture & Trauma Service, Indian Ocean Health Service, which provided brief counselling to [the applicant] between November 2 and December 7, 2016 states: "Currently [the applicant] reports persistent anxiety and intrusive ruminations about being forcibly return ed to New Zealand as a result of his belief that he is in danger if returned to his home country where he could face potential risks to his safety" (p.2).

[The applicant’s] victimization experiences whilst in custody in Queensland have had a cumulative affect on his anxiety and concern for his safety, but paradoxically, these events have produced a strong desire to rehabilitate himself by distancing himself from antisocial activities and peers, and he plans to undertake relevant education in order to offer positive mentorship to youth in the future.

Yours Sincerely,

Mercurio Cicchini

Clinical Psychologist

October 25, 2017

19    It is notable that, contrary to the applicant’s initial oral submission in the present proceeding, Mr Cicchini expressed no explicit opinion in his written report that there was a low risk of the applicant reoffending. The primary subjects of the written report are the applicant’s PTSD and his desire to rehabilitate himself while in custody.

20    The relevant parts of the transcript of Mr Cicchini’s oral evidence to the first AAT are as follows (emphasis added):

EXAMINATION-IN-CHIEF BY MR FOSTER

MR FOSTER: Good morning – I’m sorry, Mr Cicchini, good afternoon?---Hi. That’s all right. It’s still good morning over here.

Mr Cicchini, my name is Mr Foster. I appear on behalf of [the applicant]?---Excuse me, I've got a bit of an interruption. Please go ahead.

Yes. I appear for [the applicant] in these proceedings?---Yes.

I understand that you’ve provided a two-page report, dated October 25 2017, concerning [the applicant], for these proceedings; is that true?---True, yes.

Do you have the report before you?---I do.

Can I take you to the fourth paragraph. You say [the applicant] has attended for consultation visits on a number of occasions this year?---Yes .

… [Cross-examination on PTSD]

Then you say:

But paradoxically, these events have produced a strong desire to rehabilitate himself, by distancing himself from antisocial activities and peers, and he plans to undertake relevant education in order to offer positive mentorship to youth in the future.

Do you see that paragraph?---Yes , indeed, yes.

First of all, can you tell the tribunal a little bit more about what you observed concerning [the applicant]’s strong desire to rehabilitate himself?---Well, I suppose in his presentation with me, he kind of engaged in quite a lot of retrospective review of his life, and things that have transpired in his life, and I suppose taking responsibility for some of the events that led early in his life into sort of venturing into the wrong peer group, and into events that weren’t all that constructive. So basically, what I observed is a maturational process sort of staring to manifest, where he is able to analyse and look back upon his life and see the error of his ways, I suppose, or the decisions that he has made in the past that have not been that productive, and making a decision to learn from that and to try new things in the future that are more productive and helpful, and to contribute more positively to the community than he had earlier in his life. So they’re the sort of manifestations that I observed.

Did he express any particular methods by which he might contribute to society?---I think it’s listed in that second page, and that is that he wanted to kind of learn more about how to do youth work, so he could be a positive mentor to young people in the future. Given his own negative experiences when he was growing up - and he has learnt from those, and he wants to share and guide people in a positive way, in a way that - he didn’t get the sort of leadership.

You talked about a maturation process that you observed?---Yes.

Does that indicate that he may not have undergone such a retrospective or introspective analysis of his life before this time?---Well, I don’t know when it started, but I can certainly see that it’s ongoing at the moment. And having seen thousands of offenders over the years, I know that only some of them go through that process as they mature, where they sort of start, I suppose, seeing the mistakes and decisions they’ve made that have been unhelpful. One of the ways that they try to kind of come to terms with that is by not engaging in a lot of the peer activities in the institutions where they are. And I saw that in [the applicant] as well, that he doesn’t particularly want to engage too much with fellow detainees, because he has own sort of ideas about where he wants to go in the future and what he wants to do, and he doesn’t want to be influenced by peer influences.

Did [the applicant] talk to you about support or assistance which has been offered by a large number of relatives and friends that he may have access to?---He possibly did, except that I didn’t make that the focus of my intervention, if you like, because were dealing with other matters. So I was of the understanding that he would be assessed independently, in terms of his sort of future plans and things like that. I’m not sure whether that has happened or not, but I’m not in a position of offering a lot of information without reviewing the file and coming up with another report.

Would family support and assistance, if necessary, be a good thing or a bad thing for a person like [the applicant], who was considering his future?---1 think it’s very helpful.

You said a moment ago that what you observed about [the applicant] was something that only a small number of people exhibit. Did I understand that correctly?---Yes.

Do you see him going through this process as being a good thing or a bad things, in terms of his ability to live within the bounds of the law?---I think it’s good thing. Sorry, I'm not quite sure - sorry, I got distracted. Could you just repeat the question, please?

You were talking about only a small number of people going through this sort of maturation, analysis of their life?---Yes.

And what I’m wondering is, in [the applicant’s] case, how would you see that, in terms of his, to put it another way, likelihood or unlikelihood of offending against laws?---Well, I think it’s a sign of maturation , a sign of growth. It’s very positive and encouraging, and it gives hope for the future. In other words, the signs that I saw are excellent, and very promising.

If I could have a moment, Deputy President. Thank you, that’s the evidence.

<CROSS-EXAMINATION BY MS NORONHA    [1.26 pm]

Mr Cichini, my name is Rachel. I’m the lawyer for the Minister for Immigration and Border Protection, and I just wanted to ask you some questions in relation to the evidence you’ve provided in these proceedings?---All right.

Can you please confirm whether you knew [the applicant] prior to treating him?---No.

As set out in your letter of 25 October and the evidence you’ve just provided, your remit, or you were engaged to provide treatment to [the applicant] specifically in relation to his mental health issues; is that correct?--- That’s correct.

And it was not your remit to treat him for any drug or alcohol issues that he may have?--- Well, when one engages in treatment, one doesn’t exclude anything. But certainly, there was no contract or - to engage in treatment of alcohol or substance use, or any other - what I’m saying, though, is when one engages in treatment, those issues are pertinent, and they get addressed.

Mr Cicchini, at the time of providing treatment to [the applicant], were you aware of his full criminal history in New Zealand and in Australia?---Yes.

Could you please tell the tribunal what you know about that criminal history?--- Well, to be quite honest, in terms of my role here and my role in seeing [the applicant], it’s not to provide a forensic assessment of his criminal history, because if that had been the task, I would have done a written summary, and I would have been engaged to do that. I haven’t been engaged to that, and I presume that that task has already been undertaken by another specialist. So what I’m saying is, if you would like to me do that, I would have to review the file and give you the summary of information that I have. But basically, that was not my task. You’re actually asking me to do something that I am not prepared for on this occasion, and did not undertake.

…

I was simply asking you to state to the tribunal your knowledge of his criminal history, not to provide an assessment?--- Well, that’s not included in my report because I didn’t do any assessment on his criminal history. So what I have in front of me is national police certificates and other documents. But to be quite honest, in order for me to give you the content of those, I would prefer to have the opportunity to studying them.

I don’t have any further questions, Deputy President.

DEPUTY PRESIDENT: All right, thank you. Yes.

MR FOSTER: Just some re-examination, Deputy President.

DEPUTY PRESIDENT: Yes, all right.

…

21    The following points should be noted with regard to these extracts. First, at the end of the oral examination in chief, Mr Cicchini responded to a question as to the likelihood of reoffending by saying that the “sign of maturation” was “positive and encouraging” and gave hope for the future and that “the signs that I saw are excellent, and very promising”. This is the extent of Mr Cicchini’s response to that question.

22    Secondly, the cross-examination revealed that Mr Cicchini did not see his task as providing a “forensic assessment of [the applicant’s] criminal history”. He said that he would have approached the matter differently if he had been asked to provide such an assessment. He said that he assumed that the task had been done by another specialist.

23    For the following reasons, I reject the applicant’s complaint of procedural unfairness.

24    First, it is relevant to note the terms of the applicant’s reliance upon Mr Cicchini’s evidence as stated in the applicant’s submissions before the second AAT. After the applicant confirmed at the end of the second AAT hearing that he would not be calling Mr Cicchini, his representative said that in his written closing submissions he would address the weight which the AAT should place on witnesses who were not called (including Mr Cicchini). The applicant’s closing submissions substantially followed the format of Direction No. 79. With respect to the primary consideration of the risk to the Australian community should the applicant reoffend, the applicant submitted that it was unlikely that he would engage in further criminal activity. He pointed to his own evidence, as well as that of various lay witnesses, and also Mr Cicchini, in support of his submission that it was unlikely that he would reoffend.

25    Importantly, however, the Minister made clear at both the first and second AAT hearings that his position was that the applicant’s claims and evidence of rehabilitation should not be accepted. In his Statement of Facts, Issues and Contentions (SOFIC) dated 11 January 2017 to the first AAT, the Minister contended at [40(d)] that the AAT should find that there was a real risk that the applicant would reoffend, particularly because inter alia “there is no evidence from independent and authoritative sources on the likelihood of [the applicant] reoffending”.

26    Subsequently, in his final written submissions dated 4 April 2018 to the first AAT, the Minister made the following submission (footnotes omitted and emphasis added):

19.    In addition to the contentions set out in the Minister’s written submissions of 11 January 2017, the Minister makes the following contentions:

…

(c)    the Minister acknowledges that [the applicant] has sought the services of a clinical psychologist and a counsellor while in prison and in immigration detention. While it is a step in the right direction that [the applicant] has sought the services of mental health professionals, the Minister notes that the remit of these mental health professionals is to treat [the applicant’s] mental health issues arising from his difficult childhood. They have not been engaged to, and have not provided:

(i)    treatment to [the applicant] for his alcohol and drug use;

(ii)    a forensic assessment of [the applicant’s] criminal history; or

(iii)    an assessment of the risk of [the applicant] re-offending.

27    Self-evidently, the Minister was emphasising that Mr Cicchini had not been asked, nor provided, an assessment of the risk of the applicant re-offending. This submission is supported by Mr Cicchini’s oral evidence, particularly the emphasised paragraphs towards the end of the transcript extracted at [20] above.

28    Secondly, at [39] of his SOFIC dated 4 November 2019, which was filed prior to the second AAT hearing, the Minister referred to the applicant’s evidence in support of his claims of rehabilitation and that he intended “to better himself and avoid reoffending”. The Minister said that it was his understanding “that the applicant has been seeing a psychologist who intends to give evidence before the Tribunal as to the Applicant’s rehabilitation”. Presumably that is a reference to Mr Cicchini. As mentioned above, the applicant had indicated that he intended to call Mr Cicchini as a witness in the second AAT hearing, but then failed to do so. In his SOFIC in the second AAT proceeding the Minister did not reiterate his earlier contentions regarding Mr Cicchini’s evidence, presumably because he anticipated that Mr Cicchini would give additional evidence to the second AAT, but the Minister made abundantly clear in his SOFIC that he challenged the applicant’s claims of rehabilitation (see at [42]). At [43] and [44] of that SOFIC the Minister submitted that there was a “real risk that the Applicant will continue to commit further criminal offences in the future…” and that he presented an “unacceptable risk which the Australian community should not have to bear”.

29    I accept the Minister’s submission that, having regard to the Minister’s clear position, it was open to the applicant, if he so wished, to obtain an appropriate and contemporary expert assessment of the risk of the applicant reoffending, but he failed to do so.

30    Thirdly, as is made clear from the transcript extracts above, when Mr Cicchini gave oral evidence to the first AAT, he had made clear he was only treating the applicant’s mental health issues and that he expected the applicant would have been assessed independently as to his future risks and criminal history.

31    Fourthly, Mr Cicchini’s report did not purport to provide any opinion about the likely success of the applicant's rehabilitation efforts but merely observed that the applicant had a “strong desire to rehabilitate himself”. The only evidence given by Mr Cicchini squarely on the issue of the risk of the applicant reoffending was that given by him in his oral evidence at the first AAT hearing, particularly towards the end of his evidence in chief set out at [20] above. Presumably, it is that evidence which the AAT was referring to at [202] of its reasons for decision when it said that Mr Cicchini had given “positive testimony in 2017 about the risk of the Applicant reoffending…”. The AAT then explained the problems which it saw with that evidence. The first two problems were identified as the absence of Mr Cicchini as a witness in the second AAT proceeding, together with the fact that his report and evidence were “dated” because they were more than two years old.

32    Fifthly, it was only after the AAT stated at [205] that it was not presented with any contemporary psychological reports that the AAT then turned its mind to the utility of having a structured and actuarial approach to an assessment of the risk of reoffending and the absence of such evidence before it (see [206] to [209]). The applicant submitted the lack of this material was the “determining factor” in the AAT’s assessment of Mr Cicchini’s evidence. This was said to give rise to procedural unfairness because the applicant was given no notice of the AAT’s intention to rely upon the absence of such material.

33    It is far from clear to me that this was in fact the “determining factor”. While it is true that the first sentence of [211] records the AAT’s statement that it was unfortunate that there was no evidence before it that Mr Cicchini’s conclusions were made with the benefit of such actuarial predictive instruments, it appears to me that the AAT’s material concerns with Mr Cicchini’s evidence were that his judgment was made more than two years ago and the AAT did not have the benefit of receiving evidence from him in November 2019. This is evident from reading [211] as a whole and having regard to what the AAT said by way of conclusion at [252] (see [16] above). If the AAT’s reasons regarding the utility of actuarial predictive instruments being used in an expert assessment of the risk of reoffending were not determinative, there can be no procedural unfairness with respect to the AAT’s assessment as to why (although it found Mr Cicchini’s report and evidence “to be of assistance”), it gave less weight to it.

34    Sixthly, assuming (contrary to what I have said above) that the AAT’s remarks concerning the utility of actuarial predictive instruments was determinative in its decision to give less weight to Mr Cicchini’s report and oral evidence than otherwise might have been the case, there would still be no procedural unfairness. That is because, as the Minister contended in his oral submissions, there was no “practical injustice”. As was the case in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ, the applicant suffered no practical injustice because he did not lose the opportunity to present his case (see PQSM v Minister for Home Affairs [2020] FCAFC 125 at [16]-[17] per Mortimer J (dissenting but not on that issue)). That is because, as emphasised above, the applicant was on clear notice prior to the hearing of the Minister’s contention that Mr Cicchini’s report was inadequate with regard to the primary issue of risk to the Australian community and the risk of the applicant reoffending. It was open to the applicant to adduce proper and additional expert evidence on the matter, but he chose not to do so. He was apparently content to rely upon Mr Cicchini’s brief report and oral evidence before the first AAT hearing, notwithstanding that the evidentiary value of that material was directly challenged by the Minister prior to the second AAT hearing.

35    As Bell, Gageler and Keane JJ said in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38], for a breach of procedural fairness to constitute jurisdictional error (footnotes omitted):

…the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.

36    The applicant was not deprived of an opportunity to adduce different and adequate expert evidence on the risk of him reoffending, notwithstanding that he was effectively invited to do so by the Minister prior to the second AAT hearing. It may be inferred that the applicant made a considered forensic choice (noting that he was represented by both counsel and solicitors at the second AAT hearing) not to supplement Mr Cicchini’s evidence despite the criticisms made of it by the Minister.

Conclusion

37    For these reasons, the amended originating application will be dismissed, with costs.

Associate:

Dated:    8 October 2020