Federal Court of Australia

Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478

ORDERS

THE COURT ORDERS THAT:

1.    Ground 1, Particular A and Ground 2, Particulars A and C are upheld. The Applicant’s grounds of review are otherwise dismissed.

2.    The decision of the Administrative Appeals Tribunal (the Tribunal) of 17 December 2019 be set aside.

3.    The matter be remitted to the Tribunal for determination according to law.

4.    The Respondent pay the Applicant’s costs, as agreed or in default of agreement as assessed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    The Applicant is a national of New Zealand. On 17 August 2000, he migrated to Australia with his family. He was then aged nine.

2    The Applicant previously held a Class TY Special Category (Subclass 444) Visa (Visa). He resides in Australia where he has four children, who are presently between two and eight years old. His partner, parents, siblings and extended family reside in Australia.

3    The Applicant has been convicted of a number of offences. As is relevant to these proceedings, on 28 July 2016 he was convicted for possession of heroin and methamphetamines; failure to answer bail; and theft of a motor vehicle. In respect of those offences, the Applicant was sentenced to a Community Correction Order (CCO).

4    On 5 April 2017, the Applicant was convicted of further offences: robbery, violence, drug and driving offences committed between 16 October 2016 and 16 December 2016. In the lead up to his sentencing he was assessed as eligible for a Drug Treatment Order. However, because the Court regarded the seriousness of his offending as requiring a custodial sentence it did not proceed in that manner. Instead the Applicant was sentenced to two aggregate 18 month sentences of imprisonment; a third concurrent 18 month sentence of imprisonment; and a one month sentence of imprisonment for breaching the CCO that had earlier been imposed. It is uncontentious that the Applicant thus acquired a substantial criminal record for the purposes of s 501 of the Migration Act 1958 (Cth) (Migration Act). On 21 December 2017, the Applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act.

5    On 12 February 2018, the Applicant made representations seeking revocation of the cancellation of his Visa.

6    On 23 September 2019, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Delegate) decided not to revoke the cancellation under s 501CA(4) of the Migration Act, on the basis that the Applicant did not pass the character test and that the Delegate was satisfied that there was no “other reason” to revoke the cancellation (the non-revocation decision). On 2 October 2019, the Applicant sought review of the non-revocation decision in the Administrative Appeals Tribunal (the Tribunal) pursuant to s 500(1) of the Migration Act.

7    On 17 December 2019, the Tribunal affirmed the Delegate’s decision. The Applicant now seeks review of that decision in this Court, under s 476A of the Migration Act.

8    It is uncontentious that the Applicant did not pass the character test and that his Visa was initially regularly revoked. That is not in dispute in these proceedings.

THE APPLICANT’S REPRESENTATIONS

9    On 12 February 2018, the Applicant made a number of representations relevant to the various considerations under Ministerial Direction No 79 (Direction 79) issued by the Minister pursuant to s 499 of the Migration Act (CB88-90). On 15 November 2019, he prepared a Statement of Facts, Issues and Contentions for his application in the Tribunal (CB950-963). On 2 December 2019, he provided a further statement to the Tribunal (CB978-986). He also gave evidence and made representations orally before the Tribunal, which are summarised in the Applicant’s closing submissions before the Tribunal (CB1022-1028). Additionally, the Applicant provided the Tribunal with an undated further statement (CB136-137).

10    In very brief summary, those of his various representations as are relevant to the present application were as follows:

    He understood the gravity of his offending and had insight into his behaviour, having come to understand that his offending had been largely the result of alcohol and drug addiction and poor coping strategies adopted in stressful personal circumstances.

    He had worked hard to address those issues while incarcerated. He had completed programs and courses: “Going Places”; “Wised Up” (a 55 hour intensive alcohol and drug program); and the “Moderate-Intensity Violence Intervention Program”. He had also helped to organise cultural events. Indeed, he had sought to be imprisoned at his particular place of imprisonment (Ravenhall Correctional Centre) on the basis of awareness of the opportunities for rehabilitation that were available there.

    Being imprisoned for the first time had had a significant impact on him. He had been a model prisoner, and had been given privileges as a result. He had been also drug-free in prison.

    His former employer had assured him that he would have a position on release.

    In his absence, his wife had been the sole income earner for their family. She had been working night shifts while also caring for both their four children and his unwell elderly parents.

    His siblings had other responsibilities that would make it difficult for them to care for his elderly parents, and in any case as he was the eldest son it was expected within Cook Islander culture that he would provide that care.

THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

11    The following reasons of the Tribunal are relevant to the present application.

Risk to the Australian community

Involvement with criminal justice system

12    The Tribunal addressed the Applicant’s involvement with the criminal justice system as follows:

Evidence of the Applicant’s illicit drug use

70.    Certain evidence before the Tribunal is relevant to a determination regarding the likelihood of the Applicant engaging in further criminal or other serious conduct; this evidence is considered under headings as follows:

(a)    Evidence of the Applicant’s drug use insofar as the evidence shows that his drug use underpins his offending.

(b)    The Applicant’s remorse and insight into his offending.

(c)    The Applicant’s compliance or non-compliance with undertakings given to the Courts and his participation in Drug Court.

(d)    The Applicant’s participation in rehabilitative courses.

(e)    Evidence of the Applicant’s work prospects if released.

71.    A document entitled “Penelope Case Management – Document Report”, with an event start date of 6 March 2017, was in evidence before the Tribunal. The report concerned the Applicant’s Drug Court sentencing and provides information in relation to the Applicant’s drug use as follows:

Alcohol

He started drinking alcohol at 15 years of age, when he was engaging in binge drinking patterns on weekend with peers. He stated that he would typically consume around 12 cans of premixed spirits and half a bottle of spirits, once per week. That pattern of use continued up until 21 years of age. Over the last five years, he stated that he had reduced his intake and typically Ingested one stubbie of beer, on two occasions per year. He stated that he reduced his alcohol use, due to the onset of gout.

Cannabis

He first tried cannabis at 15 years of age and he quickly developed a daily pattern of use, smoking around three grams per occasion. He then ceased use at 21 years of age and reported no further ruse of the drug over the last five years.

Methamphetamines

He started smoking methamphetamines at 19 years of age, when he was smoking the substance intermittently. He was then engaging in periods of daily use from 23 years of age and most recently before entering custody in December 2016, he was smoking one gram per occasion. Upon his release from custody, he wanted to remain free of methamphetamines, for the benefit of his health and his family.

Heroin

He started smoking heroin at 19 years of age, when he was typically having ½ - 1 gram on a daily basis. He then revealed a history of sporadic use over the years and at the peak period of use before entering custody in December 2016, he was typically having one gram per day. He noted that his longest period of abstinence from the drug had spanned the last two months whilst in custody. He planned to remain free of heroin in the future.

72.    The report also provided, under the section headed ‘Psychosocial’:

In regards to his educational history, he completed Year 8 at Heather Hill Secondary College in Noble Park and he then went on to work in construction and the meatworks industry. He was last employed at the beginning of 2016 and most recently, he stated that he was supporting himself through drug dealing practices.

…

79.    The Applicant’s partner was taken to a statement related to the Applicant’s attendance at Drug Court which stated that the Applicant had been selling drugs since early 2016 to support himself: see above Penelope Case Management – Document Report at page 4. She agreed that this statement was true.

…

Prior undertakings, bail and Drug Court

99.    On 28 July 2016, a community corrections officer prepared a Community Correction Order Assessment Outcome Report which considered the Applicant’s suitability for a Community Correction Order. The report stated that the Applicant had:

been assessed as a moderate risk of reoffending utilising the Level of Service, Risk, Need and Responsivity (LS/RNR), the supervision condition has been respectfully recommended to assist in addressing the precursors of [the Applicant’s] offending behaviour.

100.    On 28 July 2016, a Magistrate made a Community Correction Order commencing on that date and continuing for 12 months. The order contained a number of obligations and included conditions that the Applicant perform 120 hours community work, be supervised by the Secretary and undergo treatment and rehabilitation in relation to alcohol and drug abuse as well as a mental health assessment and treatment and an offending behaviour program.

101.    On 1 December 2016, Community Corrections Officers prepared a report entitled “Contravention of Community Correction Order by Conditions and Further Offences” detailing various contraventions of the Applicant’s Community Correction Order. The conclusion and recommendations section provide:

[The Applicant] is a 26 year old man with a moderate criminal history.

[The Applicant] was sentenced to a Community Correction Order on 28/07/2016 and his compliance has been unsatisfactory, having failed to engage with the community work and mental health conditions and incurring four unacceptable absences for supervision. [The Applicant] has also allegedly further offended during the operational period of his order.

Given the above information, it is respectfully recommended that [the Applicant’s] Order be cancelled, and that he be re-sentenced on the original matters

102.    On 6 March 2017, a document entitled “Drug Court Case Management – Assessment Summary” recommended that the Applicant was a suitable candidate for a Drug Treatment Order. The report states that:

[The Applicant] has been assessed utilising the LS/RNR Assessment Tool as being of a HIGH risk of reoffending.

…

[The Applicant] came to Australia in 2000, settle in Clayton for a period of time before moved to Springvale South (the above address). [The Applicant] reported has always lived at home with his parents and reported he intends to reside with his family at the above address if he is sentenced to a Drug Treatment Order (DTO). He states that he has plans for independent accommodation with his partner and children in the near future. He was informed the Drug Court Homeless Assistant Program (DCHAP), to which he will be referred during the course of the DTO if required.

[Ellipses added by Tribunal; no omissions added]

103.    On 23 March 2017, the Dandenong Prosecutions Legal Services unit of Victoria Police prepared a letter which stated that the Applicant had appeared before the Drug Court for a screening on that day. It stated that the Magistrate had assessed the Applicant as not suitable for a drug treatment order on the ground that that would give him a term of imprisonment in excess of the two-year maximum available to the Drug Court.

(Footnotes omitted).

Work prospects

13    With respect to the Applicant’s work prospects, the Tribunal set out the Applicant’s employment history and his evidence that his former employer had assured him that he could resume work on release. The Tribunal noted that statements from his employer to that effect had been provided. The Tribunal also referred to evidence from an employment consultant with Melbourne City Mission at Ravenhall Correctional Centre, who stated that the Applicant was keen to learn new skills to enhance his employability on release and was very driven to meet his career goals.

Rehabilitation

14    With respect to matters that might be relevant to rehabilitation, the Tribunal summarised the evidence as follows:

104.    In his February 2018 statement, the Applicant stated:

I know that my actions have had a detrimental affect on my family and the wider community. It makes me sick that I have been the cause of such pain and anxiety to my partner, our children and to my elderly parents. I am embarrassed and ashamed of what I have done and all I can do is be determined to never put myself, my loved ones nor the wider community in this situation again. Through my work with staff in prison I have come to learn a lot about myself and how my offending behaviours stem largely from poor money management, inadequate coping strategies and alcohol and substance abuse. The constant fear of not being able to provide for my children because of my limited earning capacity and my reliance on drugs and alcohol clouded my judgement and led me to make impulsive and rash decisions that are not a part of my usual moral standards not the expected standards of the community.

Through my participation in AOD programs here in the prison and my active engagement with Education, Employment and support services I am confident that I now have the tools and knowledge to make better informed life choices when I am released. I have truly learned from this experience and I know I will never do anything that will see me returning to prison.

I have been at Ravenhall Correctional Centre now for three months. I specifically requested to be at this centre because of its focus on rehabilitation programs and the high levels of pre and post release support services they offer. I have enjoyed my time here and I am learning so many things. I feel that through all of the staff support and programs that I have begun to return to the real me – the man who cares about people round me, the man who wants to be of service to my community.

I have taken up the opportunity to work closely with programs staff to get involved in helping to organise cultural events for the centre. This has included taking a significant leadership role in the planning of an event to celebrate and observe Waitangi Day. I have taken on the role of tutor and leader for a group of about 20 prisoners from a range of different ethnicities and have taught them several cultural dances and songs over the past eight weeks. This involvement has given me a sense of achievement and renewed my passion for helping others. I have enjoyed taking on a mentoring role for the younger prisoners, many of whom are unfamiliar with their own Pacific languages and cultures. Through our training sessions we talk about how we can make things better for ourselves when we get back to our families and how we all need to change for us to have better lives.

105.    In his undated statement, the Applicant stated that during his incarceration he had “embraced all services available” so that he could be rehabilitated and identify what areas he needed to change and how to learn strategies to do so. He stated that he had completed a drug and alcohol course over 55 hours. The Applicant stated that, at that time, he was completing a violence intervention program which would last for five months.

106.    The evidence before the Tribunal included certificates of completion by the Applicant in relation to various programs:

Certificate of Achievement: Moderate-Intensity Violence Intervention Program (M-VIP)

Certificate of Achievement: Wised UP

Certificate of Achievement: Going Places

Certificate II in Construction Pathways

…

Licence to operate a forklift truck LF

Licence to perform high risk work.

107.    In his December statement, the Applicant stated that while in prison he had completed three programs entitled “Going Places, “Wised Up (55 hour intensive AOD program)” and “Moderate-Intensity Violence Intervention Program” …

108.    In addition, in his December statement, the Applicant stated that while in prison he had engaged with Melbourne City Mission in the pre and post-employment program in order to be ready for employment upon his release.

109.    The Applicant stated in his December statement that while in custody he has been involved in cultural events including a celebration of Waitangi Day for which he stated that he performed the role of tutor and leader for a group of about 20 prisoners of different ethnicities and that he had taught them several cultural dances and songs.

110.    The Applicant stated in his December statement that had made all attempts to be a model prisoner and was seldom in trouble with staff and had not broken rules. He stated that as a result of his courteous and compliant behaviour he had been placed in lodge accommodation which is a privilege only given to prisoners who satisfy staff that they deserve to be housed in that accommodation.

111.    The Applicant’s partner gave evidence of the Applicant’s involvement in rehabilitation courses while he has been incarcerated. She stated that on one occasion when the Applicant graduated from a drug and alcohol course, his clinician at Ravenhall asked him to give a speech. She stated that the Applicant had given a speech despite him, in her opinion, not being a confident public speaker. Overall, she stated that the rehabilitation courses had made the Applicant a better person.

112.    The Applicant’s partner stated that, to her knowledge, the Applicant had never, other than in prison, attended drug rehabilitation.

(Footnotes omitted).

15    Having regard, inter-alia, to that evidence the Tribunal found as follows:

119.    The evidence shows that the Applicant’s addiction and drug use has underpinned his offending and that his father’s heart attack in mid-2015 and loss of work in early 2015, along with the responsibility felt by him for taking care of his parents and his immediate family, were major contributing factors leading to his offending. Those events were triggers to his drug use and addiction which led to his offending in circumstances where the Applicant had poor coping mechanisms. There was little to no evidence before the Tribunal of any external factors regarding the Applicant’s earlier offending although I accept that external factors and an inability to cope may have led to his offending on those occasions.

120.    I accept that while in prison, the Applicant has disassociated with those with whom he consumed drugs and committed crimes.

121.    The evidence shows that the Applicant has a real appreciation regarding the consequences of his offending and the serious negative impact of his offending on him and his family.

122.    I accept that while incarcerated, the Applicant, because of a realisation of the consequences of his offending, has had a significant change in behaviour for the better.

123.    The completion of various courses directed to dealing with the causes of the Applicant’s drug use and his offending weigh against a risk of his reoffending. Similarly, the offer of employment tends to mitigate the risk of the Applicant reoffending.

Conclusion on risk

16    With respect to the risk posed to the Australian community, the Tribunal concluded as follows:

124.    However, on balance, taking into account the evidence set out above [I infer referring back to its findings in favour of the Applicant as set out at [119]-123]], I find that the Applicant presents a real risk of reoffending because:

(a)    he has a pattern of drug use and addiction leading to his offending. His drug use is precipitated by life events which lead to his being overwhelmed and, as a consequence of his poor coping mechanisms, results in his offending. There is no evidence to show that the Applicant’s circumstances outside of prison will be without those negative life events.

(b)    The Applicant has in the past been presented with warnings of consequences to his drug use and offending and been given second chances most notably by his involvement with the Drug Court and the warning given by his partner in December 2015, neither of which resulted in a change of his behaviour. The Applicant’s conduct in breaching court orders (for example, the Community Corrections Order dated 28 July 2016) weigh against him. He has been provided in the past with orders designed to provide him with an opportunity to address his criminal behaviour, and his disregard of those opportunities are relevant to an assessment of his risk of reoffending. It has been found that breaches of these sorts of opportunities display a lack of respect for Australia’s laws and also reflect poorly on the Applicant’s prospects for rehabilitation.

(c)    The Applicant’s current period of realisation regarding the consequences of his offending and abstinence is in the context of being incarcerated, albeit that I accept that he has not taken drugs despite these being widely available in prison.

(d)    The courses he has done are insufficient to adequately address the underlying causes of his offending.

(e)    Similarly, the offer of work which tends to support the Applicant’s prospects of not reoffending while positive are insufficient to allay a real concern that the Applicant is likely to reoffend given his inability to cope with major life events.

(f)    The Applicant was assessed by the Victorian Department of Justice on 6 March 2017, prior to sentencing, as a “HIGH” risk of reoffending.64 That assessment does not replace the task of making an independent assessment but I consider that an earlier assessment of risk of reoffending is a circumstance to which I may have regard.

Application in relation to the primary consideration of protection of the Australian community

125.    For the reasons set out above, I have found that:

(a)    the Applicant’s offending is very serious;

(b)    having regard to the seriousness of the Applicant’s offences, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious harm; and

(c)    the Applicant presents a real risk of reoffending.

126.    On the basis of all of the evidence, take into account the findings I have made above, I find that the consideration concerning the protection of the Australian community from criminal or other serious conduct of the Applicant, as a primary consideration, weighs heavily against revocation of the cancellation of the Applicant’s visa.

(Footnotes omitted).

Expectations of the Australian community

17    The Tribunal’s findings with respect to the protection of the Australian community were stated as follows:

143.    In relation to the primary consideration regarding the expectations of the Australian community, paragraph 13.3(1)) of the Direction provides that:

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.

144.    Paragraph 6.3 of the Direction, which sets out the principles that inform the decision (by application of paragraph 7) to refuse to grant a visa or not, contains a principle directed to the expectations of the Australian community:

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere

145.    Sub-paragraph 6.3(6) of the Direction provides:

Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

146.    In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), Charlesworth J stated:

The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

The Australian community expects non-citizens to obey Australian laws while in Australia.

This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

The second expectation is more difficult to interpret. It expressed in the second and third sentences of the clause as follows:

Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 be granted a visa.

This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

147.    Justice Stewart, in FYBR, stated further that the expectations of the Australian community under the Direction may be summarised:

If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.

148.    The primary consideration concerning the expectations of the Australian community weighs significantly against revocation of the mandatory cancellation of the Applicant’s visa as:

(a)    the Australian community’s expectation that non-citizens obey Australian laws while in Australia weighs against revocation because, as FYBR makes plain, I have found that the Applicant does not pass the character test. This is also reflective of the first limb of Charlesworth J’s summary of the expectation.

(b)    The seriousness of the nature of the Applicant’s offending, in the circumstances of his offending and the findings made above, tend significantly against revocation.

(Footnotes omitted)

Strength, nature and duration of ties to Australia

18    With respect to the Applicant’s strength, nature and duration of ties to Australia, it is relevant for the purposes of the present application to identify the Tribunal’s findings with respect to the effect of non-revocation upon his immediate family members.

19    Regarding the Applicant’s partner, the Tribunal (at paragraphs [155]-[159]) referred to statements provided by both the Applicant and his partner indicating that since his incarceration she had suffered loneliness, sadness, anger, stress and anxiety. She was concerned about the children missing their father, as well as carrying the financial burden for the family when previously she had stayed home to care for her children and the Applicant’s ailing parents while he had been the sole income earner. Of particular relevance are the following passages of the Tribunal’s reasons:

157.    … She stated that, since [the Applicant’s] incarceration, she has had to carry the financial burden for the entire family. She stated that she works night shifts of up to 10 hours any day of the week with an average of 38 hours per week. In evidence to the Tribunal the Applicant’s partner stated that her daily routine involved shifts commencing at 10:30 PM and ending at 6:30 AM, and that she typically arrives home at 6:45 AM and prepare the school-age children’s lunches.

…

159.    The Applicant’s partner gave evidence that the impact upon her of the Applicant going to prison has been that she has also had to take on the responsibility of taking care of and financially supporting the Applicant’s parents. She stated that taking care of the Applicant’s parents involved taking them to various appointments and other tasks related to their medical conditions. The Applicant’s partner stated that following the Applicant’s incarceration that she was “a wreck” but that she had to keep going because of her children.

20    With respect to the Applicant’s parents, the Tribunal identified the various medical conditions from which they suffered, and then further noted:

162.    The Applicant’s father … stated further:

Since his incarceration our daughter in-law has stepped in to take care of us. She has done absolute everything for me and my wife, from caring for us daily, running errands for us, taking us to our hospital and doctor appointments, Centrelink, physio and catering to our grandchildren at the same time. She is struggling, stressed without my son around to help her raise their children. We need our son here to care and support us physically and financially as were getting old to care for ourselves.

…

164.    The Applicant’s father said that his son has assisted him in the past in a number of manners related to his medical conditions such as taking him to the toilet and shower. He stated that the Applicant was able to lift him, which other carers were not able to do given his weight.

165.    The Applicant’s father was questioned as to whether either his other son or his daughter would be able to take care of him and his wife should the Applicant be returned to New Zealand. He stated that his daughter had her own family and was just out of hospital. In relation to his other son, he stated that he was busy attending to a small business and would be unable to assist in his and his wife’s care.

166.    The Respondent submitted that as the Applicant has two adult siblings, there was no evidence that they were not able or willing to provide the care of the Applicant’s parents. The Applicant and his family gave evidence that it was strongly felt that the Applicant, as the eldest son, had the responsibility to provide the care of his parents, and that this arrangement was common among Cook Islander people (of which the Applicant and his family are members).

(Footnotes omitted).

21    With respect to this issue, the Tribunal also relevantly noted the length of time that the Applicant had resided in Australia as follows:

151.    Paragraph 14.2 of the Direction states that decision-makers must have regard to how long the non-citizen has resided in Australia, noting that more weight should be given to time the non-citizen has spent contributing positively to the Australian community, and the strength, duration and nature of any family or social links with Australian citizens, permanent residents, including the impact of non-revocation on the Applicant’s immediate family.

Length of time that the Applicant has resided in Australia

152.    The Applicant has been a resident of Australia since 2000. He arrived in Australia as a young child, when he was nine years old, and he has spent most of his life and adulthood in Australia. The Applicant has been resident in Australia for 19 of his 29 years.

22    With respect to the strength, nature and duration of the Applicant’s ties to Australia the Tribunal concluded:

177.    The consideration concerning the strength, nature and duration of the Applicant’s ties to Australia weighs significantly in favour of the Applicant as:

(a)    the Applicant arrived in Australia as a child and has spent most of his life in Australia.

(b)    The effect of non-revocation upon the Applicant’s partner will be very substantial and, on his parents, the effect may be substantial while noting that:

(i)    the Applicant has been in custody for the last 3 years;

(ii)    I have found that it is likely that the Applicant will re-offend, a fact that tends to have the potential both to diminish the positive impact of non-revocation and increase a potential negative impact; and

(iii)    the Applicant has other siblings and family members to provide support to his parents.

(c)    The Applicant has substantial family and social links to Australia which are the result of having spent the majority of his life in Australia. The persons who gave evidence in support of the Applicant, while somewhat self-serving, were consistent in stating that the Applicant was generous and family-oriented man.

The Tribunal’s conclusion

23    The Tribunal’s reasons for reaching its ultimate conclusion were then stated as follows:

186.    For the above reasons, I determine the present application for review under s 501CA of the Act as follows:

187.    First, I find that the Applicant fails the character test as defined by s 501 of the Act because he has a substantial criminal record.

188.    Second, I find that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked. In arriving at that conclusion, I have considered the provisions of the Act and the Direction and made findings as follows:

Primary considerations

(a)    Protection of the Australian community:

(i)    Nature and seriousness of the conduct to date: I find that the Applicant’s offending is very serious, as it involved assaults against police officers, consisted of violence on various occasions and was frequent and was increasing in seriousness; and

(ii)    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: for reasons provided above, I find that the Applicant presents a real risk of reoffending.

This consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.

(b)    Best interests of the Applicant’s minor children:

(i)    For the reasons above, including the nature and duration of the Applicant’s relationship with his children, I find revocation is in the best interests of the Applicant’s children.

As a result, I find this consideration weighs significantly in favour of revocation of the cancellation of the Applicant’s visa.

(c)    Expectations of the Australian community:

(i)    As explained in FYBR, this consideration necessarily weighs against the Applicant as I have found that he does not pass the character test; and

(ii)    The seriousness and circumstances of the Applicant’s offending tend significantly against revocation.

I find that this consideration weighs significantly against revocation of the cancellation of the Applicant’s visa.

Other considerations

(a)    Strength, nature and duration of ties:

(i)    On the length of time that the Applicant has resided in Australia: the evidence shows that he has spent the substantial part of his life and adulthood in Australia;

(ii)    On the effect of non-revocation upon immediate family members: the applicant’s partner and parents gave evidence and I accept that non-revocation would substantially impact their lives financially and socially; and

(iii)    On the strength of family and social links with Australian citizens, permanent residents: evidence of the Applicant’s extended family, former employers, and religious leader demonstrates strong social ties to Australia.

    This consideration weighs significantly in favour of the Applicant.

(b)    Extent of impediments if removed:

(i)    As outlined above, the Applicant’s capacity to establish himself would be significantly impeded by the absence of any close family or social ties. This consideration weighs in favour of the Applicant.

189.    On balance, notwithstanding that the best interests of the Applicant’s children and the strength nature and duration of ties strongly favour revocation of the cancelation of the Applicant’s visa, the protection of the Australian community and community expectations (as formulated under the Direction), which strongly weigh against revocation, outweigh the considerations in favour of revocation.

GROUNDS

24    The Applicant advances two grounds of review, each in turn particularised in a number of discrete ways, as follows:

1.    The Tribunal fell into jurisdictional error because the Tribunal’s satisfaction as to the Applicant’s risk to the Australian community should the Applicant commit further offences or engage in other serious conduct was based on findings that were irrational.

Particulars

A.    The Tribunal’s finding that the Applicant had disregarded opportunities afforded to him to address his criminal behaviour “most notable” on “his involvement with the Drug Court” lacked a probative basis as the Applicant had not in fact ever been subject to a Drug Treatment Order.

B.    In addressing the Applicant’s risk of reoffending, the Tribunal failed to take into account:

i.    the Applicant was considered suitable for a Drug Treatment Order notwithstanding his past issues of non-compliance;

ii.    the Applicant had availed himself of treatment opportunities in the past including drug counselling while subject to a Community Correction Order;

iii.    the absence of any misconduct by and disciplinary action against the Applicant since being taken into custody in December 2016.

C.    The Tribunal lacked a sufficient probative basis to find that rehabilitative courses in which the Applicant had completed and was engaging in and the offers of work were “insufficient to adequately address the underlying causes of his behaviour”.

D.    The risk assessment conducted in March 2017, without any contextual material which grounded that assessment, was not a probative basis on which the Tribunal could have rationally informed itself as to the Applicant’s risk of reoffending in December 2019.

2.    The Tribunal’s decision is affected by jurisdictional error because it was legally unreasonable.

Particulars

A.    The particulars to ground 1 are repeated.

B.    The Tribunal found the Applicant has other siblings and family members to provide support to his parents despite:

i.    the Applicant, his father and his eldest sister all gave evidence that neither of the Applicant’s siblings had capacity to provide the level of support needed by their parents;

ii.    it never having been put to the Applicant or other witnesses that other family members could (or should be expected to) provide support to his parents;

iii.    the Applicant’s partner was already struggling to provide support without the assistance from the Applicant.

C.    In assessing the expectations of the Australian community, the Tribunal:

i.    incorrectly applied the principle under paragraph 6.3(6) of Direction No 79; and

ii.    did not apply the principle under paragraph 6.3(5) of that Direction.

D.    The Tribunal failed to articulate with any degree of specificity why the factors in favour of revocation were, on balance, outweighed by the factors against revocation.

E.    For the above reasons, the Tribunal’s decision that there was not ‘another reason’ to revoke the cancellation decision under review as unreasonable or lacked an evident and intelligible justification.

Ground 1

Applicant’s submissions

Particular A: Whether the Applicant was subject to a Drug Treatment Order

25    In his written submissions the Applicant takes issue with the Tribunal’s reference at paragraph [71] to the Drug Court report as having “concerned the Applicant’s Drug Court sentencing” (emphasis added). That, he submits, is incorrect. The report to which the Tribunal there refers had been prepared to determine whether he might be suitable for a Drug Treatment Order (DTO) as a preliminary issue. It had never been adopted by the sentencing Court.

26    The Applicant submits that the Tribunal mistakenly regarded his “involvement” with the Drug Court as having been an opportunity to address his drug problems, of which he had failed to take advantage. He submits that although the Tribunal had earlier correctly noted (at paragraphs [102]-[103]) that he had been screened and found suitable for a DTO, the Magistrate had assessed that that option was unsuitable in view of the two-year maximum term of imprisonment available to the Drug Court. He submits that the Tribunal at paragraph [124(b)] had proceeded on the mistaken basis that:

The Applicant has in the past been presented with warnings of consequences to his drug use and offending and been given second chances most notably by his involvement with the Drug Court and the warning given by his partner in December 2015, neither of which resulted in a change of his behaviour. The Applicant’s conduct in breaching court orders (for example, the Community Corrections Order dated 28 July 2016) weigh against him. He has been provided in the past with orders designed to provide him with an opportunity to address his criminal behaviour, and his disregard of those opportunities are relevant to an assessment of his risk of reoffending. It has been found that breaches of these sorts of opportunities display a lack of respect for Australia’s laws and also reflect poorly on the Applicant’s prospects for rehabilitation.

(Emphasis added by Applicant).

27    The Applicant submits that those findings illustrate that the Tribunal had been mistaken, in two ways:

35.1    The Tribunal contrasted Mr Kura’s purported Drug Court involvement with his CCO (imposed in 2016 by an entirely different court). This illustrates that the Tribunal clearly viewed Mr Kura’s involvement with the Drug Court as distinct from his involvement with Community Correctional Services when he was subject to the CCO. The Tribunal was not conflating the two processes.

35.2    The Tribunal deployed the words “order” and “those opportunities” (referring to the orders) – both in the plural – when discussing the chances Mr Kura had purportedly squandered. Mr Kura had only been subject to a single order that provided treatment opportunities (the CCO). This demonstrates that the Tribunal erroneously viewed Mr Kura’s involvement with the Drug Court as something more than an assessment of his suitability for a DTO.

28    Those mistaken apprehensions, the Applicant submits, were “critical” to the Tribunal’s finding regarding the likelihood of his reoffending in two respects. First, they were used by the Tribunal in support of its finding that he had disregarded orders made by the Drug Court. Secondly, they had led to the Tribunal proceeding on an erroneous understanding that the Applicant’s behaviour had not changed despite his having been given “second chances” by reason, inter-alia, of his involvement with the Drug Court and the programs it offered.

29    The objective facts, he submits, were entirely to the contrary. The Applicant had not been offered such a second chance. He could not have disregarded Drug Court orders because he had never been subject to a DTO.

30    In oral argument counsel for the Applicant, Mr Buchhorn, refined those submissions to address the Court’s observation that a Tribunal was entitled to make an error of fact; review was only available for jurisdictional error. Mr Buchhorn drew support from the reasoning of Rangiah J (with whom North J had agreed) in Moana v Minister for Immigration [2015] FCAFC 54; 230 FCR 367 at [66] as establishing that in exercising the power of revocation a decision maker must consider the risk of harm to the Australian community posed by the continued presence of a visa holder and “take into account any such risk”. An error going to the heart of that task was not a factual error within jurisdiction. It was, accordingly, a jurisdictional error.

Particular B: Failure to consider relevant matters

31    The Applicant in his written submissions also submits that in evaluating the likelihood of him engaging in further criminal or serious conduct, the Tribunal failed to consider three relevant matters. The first was the opinion of the “Drug Court team” that he was suitable for a DTO. However, in oral submissions Mr Buchhorn abandoned reliance on that particular. It is unnecessary to discuss it further.

32    The second relevant matter was the Applicant’s compliance with drug counselling conditions of his CCO. The Applicant’s written submissions accept that Tribunal referred to the CCO and its conditions as well as to the CCO contravention report, which referred to him not complying with the community work and mental health conditions that it had imposed (at paragraphs [99]-[101]). However, the Applicant submits that the Tribunal did not take into account the fact that the report also indicated that he had been complying with the alcohol and drug counselling conditions of the CCO. Specifically, it stated that:

Mr Kura was referred to the South Eastern Consortium of Alcohol and Drug Agencies (SECADA) for further counselling in relation to drug/alcohol issues. Mr Kura is currently attending counselling sessions with Mr Roger Volk.

33    That reflected, it is submitted, motivation to address his drug issues. It suggested that the Applicant might be in a “contemplative or preparatory phase of his recovery from drug addiction”.

34    The third relevant matter was the Applicant’s good behaviour in custody, as reflected in his various statements to the Tribunal. The Applicant notes that the Tribunal (at paragraph [124(b)]) found that his having previously breached orders reflected a lack of respect for Australian law and reflected poorly on his rehabilitation prospects. The Applicant submits that conversely his ability to remain out of trouble between December 2016 and December 2019 and his “enduring commitment” to rehabilitation were equally relevant, but were not considered.

Particular C: The Tribunal’s rejection of the sufficiency of the Applicant’s rehabilitation

35    The Applicant takes issue with the Tribunal making the findings it did at paragraphs [120]-[123] with respect to his insight into his offending; change in behaviour; completion of courses; and offer of employment, but then finding that “the courses he has done are insufficient to adequately address the underlying causes of his offending” (at paragraph [124(d)]) and that his prospective employment would similarly be “insufficient to adequately address the causes of his offending” (at paragraph [124(e)].

36    The Applicant submits that those findings contradict the evidence that was before, and accepted by, the Tribunal. In view of the undisputed evidence that he had remained “drug-free and out of trouble for over three years” it was not open to the Tribunal to conclude that the relevant courses were “insufficient”. In any case, the Tribunal lacked any relevant expertise or specialist knowledge as would have entitled it to make its own assessment of the sufficiency or otherwise of the courses (in contrast for example to the position where a decision-maker has accumulated specialist knowledge about a particular country, citing Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [43]). That applied also to the Tribunal’s ability to consider the sufficiency of prospective employment as a protective factor. There was no probative evidence to support the findings the Tribunal made in those regards.

Particular D: The Tribunal’s reliance on a historical risk assessment

37    It will be recalled that the Tribunal at paragraph [102] extracted a passage of the Drug Court report which stated that the Applicant “has been assessed utilising the LS/RNR Assessment Tool as being of a HIGH risk of reoffending”. The Applicant submits that that risk assessment should be concluded to have been wholly irrelevant to the Tribunal’s task. That is because first, there was no evidence before the Tribunal as to the context of the assessment (such as what factors were considered; whether they were static or dynamic and so on); secondly, his circumstances had changed dramatically between March 2017 and December 2019; and thirdly, the risk assessment had been conducted for the very different purpose of assessing his suitability for a DTO. The Applicant cites various authorities in support of that proposition, and places particular reliance on the following passage of Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 (Splendido) at [93]:

An administrative decision-maker exercising a power such as that in s 501CA cannot cherry-pick aspects of sentencing jargon (such as “insight”), and isolated aspects of sentencing process (such as risk of re-offending) and apply them without consideration of the contextual material which grounds the assessments in those processes. It is the contextual material which provides the probative basis, and indeed the factual basis, for making distinctions about likelihood of future conduct.

Minister’s submissions

38    The Minister advances the following submissions with respect to the Applicant’s contentions under this ground:

Particular A: Whether the Applicant was subject to a Drug Treatment Order

39    In the Minister’s written submissions, it is contended that the Court should not infer that the Tribunal (incorrectly) understood that the Applicant had been subject to Drug Court orders with which he had failed to comply. The Tribunal had earlier expressly referred to a letter from Victoria Police stating that the Magistrate had found that the Applicant was unsuitable for a DTO given the limitations on the sentences available to the Drug Court (at paragraph [103]). The only fair reading of the Tribunal’s reasons at paragraph [124(b)] was that it had found only that the Applicant had had some “involvement” with the Drug Court, which was the language that it had used in that passage.

40    With respect to the Tribunal’s reference at paragraph [124(b)] to the Applicant’s conduct in breaching court orders, the Minister’s written submissions posit that this should be understood as referring to the Applicant having breached his earlier CCO.

41    As for the Tribunal’s use of the term “Drug Court sentencing” at paragraph [71] to describe the Drug Court report, the Minister submits that the report (CB316-322) was prefaced by an initial summary of relevant information. That summary had relevantly referred to “Case: Drug Court Sentencing 23/03/2016”, followed by a file number. The Minister’s written submissions contend that, rather than the Tribunal having wrongly concluded that he had been so sentenced, the more plausible explanation is that the Tribunal had simply taken that phrase directly from that document. It had not misunderstood the process to have been one in which the Applicant had been given a sentence that had given him an opportunity to address his substance abuse, which he had then declined to take advantage of or pursue.

42    However, in oral submissions counsel for the Minister Ms Lucas conceded that such a submission could not be maintained. Directed by the Court to the words used by the Tribunal with respect to the Applicant not having taken advantage of “second chances”, Ms Lucas acknowledged:

I concede there has been an error of fact, insofar as the reference to second chance connotes in effect, that there was offending that followed that participation in the Drug Court, and I accept that there is no such offending present that would warrant the Tribunal to make that particular statement …

43    Mr Lucas however maintained her submission that while that error had been made, the Court should not find that the Tribunal had reasoned (wrongly) that the Applicant had been subject to a formal sentencing process in the Drug Court. The Court could not be satisfied that the Tribunal had proceeded on that erroneous assumption; its reasons should be read as referring to his merely having had some involvement with the Drug Court.

44    However I take Ms Lucas to have submitted that if the Minister were wrong in that regard such an error in any event would not be jurisdictional error because, having regard to the other findings made by the Tribunal, no conclusion was reasonably open to it other than the one that it reached. Any such error was therefore immaterial.

Particular B: Failure to consider relevant matters

45    With respect to the Applicant’s compliance with the drug and alcohol counselling conditions of his CCO, the Minister submits that the Tribunal did note that the CCO directed him to undergo drug and alcohol counselling and then noted his failure to comply with that order (at paragraphs [100]-[101]). The Tribunal had also addressed the Applicant’s claims to have participated in alcohol and drug programs in prison (at paragraphs [104]-[112)]. Regarding the Applicant’s attendance at drug and alcohol counselling with Mr Volk, he had not mentioned that circumstance in his written submissions to the Tribunal. In any case, the Tribunal was not required to expressly refer to every piece of evidence before it (citing Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41], [48]-[49]; Navoto v Minister for Home Affairs [2019] FCAFC 135 at [88]; Matthews v Minister for Home Affairs [2020] FCAFC 146 at [28]).

46    With respect to the Applicant’s good behaviour in custody, the Tribunal noted his behaviour while incarcerated (at paragraphs [104]-[110]); noted that he had been a “model prisoner” (at paragraph [110]); accepted that while in prison he had disassociated with former associates with whom he had consumed drugs and committed crimes (at paragraph [120]); and accepted that while incarcerated he had gained insight into his offending and had significantly changed for the better (at paragraph [122]). The Tribunal nonetheless had reasoned that the Applicant represented a real risk of reoffending (at paragraph [125(c)]). The Tribunal’s reasons therefore demonstrated a logical and probative basis for its findings as related to the Applicant’s rehabilitation. It had not ignored those factors. Set in context, the Minister submits that the Applicant’s submissions on this point in truth go to the weight the Tribunal gave to the evidence and invite the Court to impermissibly undertake merits review.

Particular C: The Tribunal’s rejection of the sufficiency of the Applicant’s rehabilitation

47    Regarding the Tribunal’s findings that the courses the Applicant had undertaken and his prospective employment were insufficient to adequately address the underlying causes of his offending (at paragraphs [124(d)-(e)]), the Minister submits that those findings were open to the Tribunal. The facts found by the Tribunal provided context to the weight that it was prepared to afford those circumstances when balancing all the matters relevant to its broader finding that there was a risk of the Applicant reoffending: a finding that was also open to it.

Particular D: The Tribunal’s reliance on a historical risk assessment

48    In the Minister’s written submissions the Minister contends that it was open to the Tribunal to rely on the historical risk assessment, together with the considerable amount of other evidence before it, in reaching the conclusion it did at paragraph [124(f)]. The Tribunal properly identified the context of that document, referring to it as “an earlier assessment of the risk of reoffending” (paragraph [124](f)) (emphasis added). The Tribunal’s reasons demonstrated that it well understood that it was required to make its own independent assessment of the risk posed by the Applicant. For those reasons, Splendido is readily distinguishable. The Minister submits that properly understood, the Applicant’s submissions on this point take issue with the weight that the Tribunal afforded the historical assessment.

Consideration

49    The examination of alleged errors in the reasoning of a lay tribunal must be undertaken bearing in mind the principle articulated by Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 380 (Pozzolanic) that a reviewing court is “not [to] be concerned with looseness in the language … the reasons for the decision under review are not to be construed minutely with an eye keenly attuned to the perception of error”. That principle has been rearticulated on many occasions. I take it to be uncontentious.

50    Having regard to that principle I am unpersuaded that the errors alleged by the Applicant as particularised at B, C and D are made out. In those regards, subject to the additional remarks I make below, I adopt the responsive submissions advanced on the Minister’s behalf as I have summarised above.

51    I need add only two observations.

52    The first is that I proceed on the basis that the Tribunal’s reference at paragraph [124(d)] of its reasons to it not being persuaded that the courses the Applicant had undertaken in prison were sufficient to adequately address the underlying causes of his offending involved an implicit reference back to its finding at paragraph [119] as to the underlying triggering events of that offending. I make that observation against the background that the parties had not drawn to the Tribunal’s attention any explicit evidence that the likelihood of the Applicant reacting to such triggering events had been, or could have been, addressed by the courses that (as the Tribunal acknowledged at paragraph [106]) he had undertaken. I am unpersuaded that a fair reading of its reasons requires me to conclude that that finding was not available to the Tribunal, albeit that I accept that a differently constituted Tribunal might have been prepared to extend to the Applicant some greater acknowledgment of his appreciation of the consequences of his offending (which nonetheless the Tribunal did acknowledge) and place greater weight on his significant attempts to respond positively to opportunities for rehabilitation during his incarceration.

53    The second is that I proceed on the basis that it cannot be correct that the Tribunal was prohibited from treating as relevant to the risk the Applicant posed to the Australian community that some three years earlier he had “ been assessed utilising the LS/RNR Assessment Tool as being of a HIGH risk of reoffending”. I accept that if a Tribunal were to rely exclusively on a significantly dated assessment, that might potentially amount to jurisdictional error. In this instance however the Tribunal acknowledged the nature of that assessment and the time at which it was made, and correctly identified the context in which it was undertaken. The Tribunal therefore correctly proceeded on the basis that that conclusion had been reached by the professional staff of the Drug Court in the course of their making an assessment in respect of the Applicant’s eligibility to participate in the programmes potentially available through that mechanism. I accept that the passage of time must reduce the weight to be attributed to such an assessment. However, the weight to be accorded to that consideration in those circumstances was for the Tribunal: not this Court. I reject that it was not open to the Tribunal to have had regard to that assessment as one element of its multi-factorial assessment of the risk the Applicant posed to the Australian community.

54    However, the position is significantly different with respect to the error the Applicant alleges in Particular A. Ms Lucas properly concedes that in its findings at paragraph [124(b)] the Tribunal made an error of fact, insofar as its reference to the Applicant having been given “second chances” reflected a finding on its part that the Applicant had offended again after participation in the Drug Court. I note that Ms Lucas then submitted that there was no error in the Tribunal having proceeded on the basis that the Applicant had had some involvement in the Drug Court process. However, that does not address the gravamen of the ground as advanced.

55    In my view, notwithstanding the benevolent construction properly to be accorded to the reasoning of a lay tribunal, the only available reading of the Tribunal’s reasons at paragraph [124(b)] is that it proceeded on the basis that the Applicant had been given a “second chance” by the Drug Court by way of some unidentified sentencing mechanism of which he had not taken advantage. That was not the case. In respect of the critical question of the likelihood of the Applicant re-offending, the Tribunal therefore expressly reasoned that the Applicant had been presented with warnings of consequences to his drug use and offending and had “been given second chances, most notably by his involvement with the Drug Court and the warning given by his partner in December 2015, neither of which resulted in a change of behaviour”. Plainly, with respect to its reasoning regarding the Drug Court the Tribunal proceeded in error in those regards.

56    I am satisfied that that critical misapprehension led the Tribunal into error in respect of its reasoning regarding a mandatory consideration that the Tribunal was bound consider, being the consideration identified in sub-paragraph 13.1.2(1)(b) of Direction 79. That clause required the Tribunal to have regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, “taking into account available information and evidence on the risk of the non-citizen reoffending”.

57    The “available information and evidence” in this proceeding was plainly other than as the Tribunal apprehended it to have been.

58    I accept that not all errors in fact finding will go to jurisdiction. Many will not. In my view however, the wrong finding that the Tribunal made in this case - that is, that the Applicant had been given an opportunity by his involvement with the Drug Court of which he had not taken advantage - led the Tribunal to proceed on a factually flawed basis in respect of a critical matter going to the exercise of its jurisdiction in respect of a mandatory consideration provided for in Direction 79.

59    I am satisfied therefore that the Tribunal did not complete the task it was obliged to undertake according to law.

60    Ms Lucas did not advance detailed submissions as to why it might be open to the Court, notwithstanding that it might reach such a conclusion, to find that the error was immaterial. In any event, I would reject such a submission. It can be accepted that in reaching its conclusion that the Applicant presented a real risk of reoffending and that in consequence the primary consideration of the protection of the Australian community weighed heavily against revocation of the cancellation of the Applicant’s visa, the Tribunal referred to other indicia. However, the question in respect of materiality is not whether this Court would differently concluded. The question is whether on the true facts, a Tribunal that had not made such an error could have reached a different conclusion. Discounting the significance the Tribunal plainly attributed to its incorrect adverse finding, I am unpersuaded that a different outcome could not have been within the realm of realistic possibility. The duty of fact finding and the weighing of such facts are, as Ms Lucas submits in respect of other particulars advanced by the Applicant, matters for the Tribunal: not this Court.

61    I would uphold Ground 1.

Ground 2

62    It will be recalled that Ground 2 is stated as follows:

2.    The Tribunal’s decision is affected by jurisdictional error because it was legally unreasonable.

Particulars

A.    The particulars to ground 1 are repeated.

B.    The Tribunal found the Applicant has other siblings and family members to provide support to his parents despite:

i.    the Applicant, his father and his eldest sister all gave evidence that neither of the Applicant’s siblings had capacity to provide the level of support needed by their parents;

ii.    it never having been put to the Applicant or other witnesses that other family members could (or should be expected to) provide support to his parents;

iii.    the Applicant’s partner was already struggling to provide support without the assistance from the Applicant.

C.    In assessing the expectations of the Australian community, the Tribunal:

i.    incorrectly applied the principle under paragraph 6.3(6) of Direction No 79; and

ii.    did not apply the principle under paragraph 6.3(5) of that Direction.

D.    The Tribunal failed to articulate with any degree of specificity why the factors in favour of revocation were, on balance, outweighed by the factors against revocation.

E.    For the above reasons, the Tribunal’s decision that there was not ‘another reason’ to revoke the cancellation decision under review as unreasonable or lacked an evident and intelligible justification.

Applicant’s submissions

Particular A: Whether the Applicant was subject to a Drug Treatment Order

63    With respect to unreasonableness, the Applicant first submits that the matters he identifies in relation to Ground 1 are also relevant to Ground 2 (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ).

64    The Applicant then identifies three further matters that he submits to be relevant to this ground:

Particular B: The Tribunal’s findings with respect to the Applicant’s siblings caring for his parents

65    The Applicant points to the evidence that he provided regarding the care of his parents, indicating that his partner was caring for them as well as financially supporting the family but had been struggling in that regard. He submits that he, his partner and his father all gave consistent evidence before the Tribunal that his siblings had other responsibilities and that he was expected to provide care to his parents, including for cultural reasons. There was no evidence that his brother had any capacity to care for their parents, and his sister had written a letter indicating that:

Both our parents have had a Heart operation or Bypass surgery and also our Father who just had his knee replacement operation last month Dec 8th, 2017 as well, so it has been full on for our parents and for my Brother not being here to help has been very hard. For myself I am involved in our Cook Island Community Club, Noble Park Netball Club, Westall Primary School involving a lot of community services have kept me busy.

66    The evidence before the Tribunal thus provided no rational or logical basis as could support its finding that “the Applicant has other siblings and family members to provide support to his parents” (at paragraph [177(b)(iii)]. The Tribunal’s conclusion was therefore not open to it. As a result, the Tribunal could not be found to have given proper weight to the “other consideration” of the Applicant’s strength, nature and duration of ties to Australia.

67    Moreover, the Applicant submits that from the Tribunal’s failure to address the impact of non-revocation on his partner it can be inferred that the Tribunal failed to give that circumstance genuine, proper and realistic consideration (citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]).

68    The Applicant does not pursue Particular B(ii) of Ground 2.

Particular C: Asserted application of a wrong principle under Direction 79

69    The Applicant’s written submissions refer to the Tribunal’s recitation of sub-paragraph 6.3(6) of Direction 79 at paragraph [145], with respect to the expectations of the Australian community, as follows:

Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

70    The Applicant submits that his Visa, while “temporary”, was not a “limited stay visa” because it had permitted him to remain indefinitely in Australia: subject to his continuing to be a New Zealand citizen. It had no fixed expiry date. What the Tribunal therefore should have cited was sub-paragraph 6.3(5), which was clearly relevant to the Applicant who had lived in Australia for most of his adult life:

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(Emphasis added by Applicant).

71    The Applicant further submits that sub-paragraph 6.3(7) (which refers to the length of time a non-citizen has been making a positive contribution to the Australian community and the impact of cancellation on immediate family member) was also relevant, but ignored. He submits that the Tribunal failed to recognise the relevance of those sub-paragraphs and erroneously applied sub-paragraph 6.3(6), and as a result erred in law (citing FYBR v Minister for Home Affairs [2019] FCAFC 185; 374 ALR 601 (FYBR) at [76]-[77]).

Particular D: Contention that lack of specificity in reasons concerning balancing of considerations reveals absence of intelligible justification

72    The Applicant takes issue with the Tribunal’s conclusion (at paragraph [189]) that:

On balance, notwithstanding the best interests of the Applicant’s children and the strength nature and duration of ties strongly favour revocation of the cancellation of the Applicant’s visa, the protection of the Australian community and community expectations (as formulated under the Direction), which strongly weigh against revocation, outweigh the considerations in favour of revocation.

(Emphasis added by Applicant).

73    That submission draws on the Tribunal’s analysis in the preceding paragraphs ([186]-[188]) that the protection and expectations of the Australian community weighed “heavily against” and “significantly against” revocation whereas the best interests of minor children and the strength, nature and duration of the Applicant’s ties to Australia weighed “significantly in favour” or “in favour” of revocation. On that premise, the Applicant submits that the Tribunal thus appears to have found that the factors in favour and against revocation were equally strong. Notwithstanding the “formulaic” reference to “on balance”, the Tribunal did not actually address how in those circumstances it had formed the view that one set of factors outweighed the other. In circumstances where (as the Applicant submits was the case in the matter before the Tribunal) the balance is fine, more precise language is required if the Court is to ascertain that a conclusion of this nature has a sufficiently rational foundation or an evident or intelligible justification. That is something the Applicant submits that its reasons must disclose. If there is no such foundation or justification, that will constitute jurisdictional error (citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47]).

74    Mr Buchhorn submits that the Tribunal in this case failed to reflect on and honestly confront the consequences of its decision, which Allsop CJ said was a necessary concomitant of its duty in Hands v Minister for Immigration and Border Protection [2019] FCAFC 188; 364 ALR 423 at [3]. For that reason, it fell into error.

Particular E: Failure to conclude there was another reason to revoke the cancellation decision.

75    I do not take Particular E to be more than a rolled up repetition of the earlier asserted errors. It was not the subject of oral submissions, and it is unnecessary to give it independent consideration.

Minister’s submissions

76    The Minister addresses the various contentions advanced by the Applicant as follows:

Particular A: Whether the Applicant was subject to a Drug Treatment Order

77    Ms Lucas did not specifically address the Court with respect to Particular A of Ground 2. I take that to have been because that ground essentially rearticulates, albeit under a different head of review, the Applicant’s submissions with respect to Particular A of Ground 1. I take both parties to have accepted that a finding in favour of the Applicant in respect of Particular A of Ground 1 would entitle the Court to reach a similar finding with respect to Particular A of Ground 2. In any event, in light of the position taken by the parties, I am satisfied that that conclusion follows. I would uphold Ground 2 as so particularised on that basis.

78    On that premise, it is strictly unnecessary for the Court to go further. However, as the parties have advanced detailed submissions with respect to the other particulars of Ground 2 it is appropriate to set out the Minister’s further submissions in response to those advanced by the Applicant and state the Court’s conclusions with respect to those further particulars.

Particular B: The Tribunal’s findings with respect to the Applicant’s siblings caring for his parents

79    The Minister submits that the Applicant’s contentions with respect to this issue “rise no higher than emphatic disagreement with the Tribunal’s findings”. The Tribunal gave detailed consideration to the effect of non-revocation on the Applicant’s immediate family members, and had regard to his parents’ medical conditions in doing so (at paragraphs [153]-[176]). In particular, the Minister submits that the Tribunal did have regard not only to the evidence going to the Applicant’s siblings’ ability to provide care for his parents, but also to the Minister’s submission that there was in fact no evidence to establish that they should be found to be unable or unwilling to provide such care (at paragraphs [165]-[166]). In any case, the Tribunal concluded that the strength, nature and duration of the Applicant’s ties to Australia weighed significantly in his favour.

80    The Minister submits in particular that the Tribunal’s statement at paragraph [177] that the Applicant had other siblings and family members to provide support to his parents was “no more than an observation”: as distinct from a material finding of fact. Any unreasonableness in respect of that statement therefore could not give rise to jurisdictional error, as it did not relate to a jurisdictional fact (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132]). In any case, even if it were a material finding of fact such a finding was open on the evidence before the Tribunal.

81    In oral submissions Ms Lucas further submitted that read in context, the Tribunal’s reasons at paragraph [177(b)(iii)] reflected no more than a finding that it had not been satisfied on the evidence before it that the Applicant’s siblings and family members - whatever their evidence had been - would not, if they had to, have provided his parents with support.

Particular C: Asserted application of a wrong principle under Direction 79

82    The Minister concedes that the Tribunal referred incorrectly to sub-paragraph 6.3(6) of Direction 79, and accepts that the Tribunal should have referred to sub-paragraphs 6.3(5) and 6.3(7). However, the Minister submits that those sub-paragraphs are merely “guiding principles” reflecting likely social attitudes: as opposed to the mandatory considerations set out in Part C of Direction 79 (citing by way of analogy Mataia v Minister for Immigration and Border Protection [2018] FCA 401 (Mataia) at [61]). They do not “fetter or constrain” the Tribunal’s analysis of mandatory considerations (citing NWRQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [30]). The Tribunal was not obliged to expressly refer to or indeed to apply those “guiding principles” when assessing the mandatory consideration of the expectations of the Australian community.

83    In any case, the Minister submits the Tribunal did note that the Applicant had arrived in Australia at the age of nine and had resided here for 19 of his 29 years (at paragraphs [151]-[152]). Moreover in finding that the strength, nature and duration of his ties in Australia weighed heavily in his favour, the Tribunal had observed that he had spent most of his life in Australia (at paragraph [188(a)].

Particular D: Contention that lack of specificity in reasons concerning balancing of considerations reveals absence of intelligible justification

84    With respect to this contention, the Minister simply submits that:

The Tribunal undertook a detailed analysis of the Applicant’s evidence and arguments and was required to consider them in balance when deciding whether there was “another reason” to revoke the mandatory cancellation of the Applicant’s visa.

Consideration

85    As stated above, the Court upholds Ground 2 as particularised at A. I turn then to Particulars B-D of Ground 2.

86    Having regard to the principles generally governing judicial review as stated in Pozzolanic I accept the Minister’s submissions as set out above at [79]-[81] regarding Particular B, which relates to the ability of the Applicant’s siblings to care for his parents. I do not take the Tribunal to have made, at paragraph [177(b)(iii)]), a positive finding in the absence of a factual foundation. I am satisfied that a fair reading of that sub-paragraph is simply that the Tribunal was unpersuaded by those aspects of the Applicant’s evidence as had asserted that it should be affirmatively satisfied that other members of his family would not provide care to his ailing parents.

87    As to Particular D, I note that the Applicant does not advance a ground of review that the Tribunal’s decision should be set aside for inadequacy or an absence of reasons. However, he does submit that it would be open for the Court to conclude that the Tribunal misunderstood the nature of its duty.

88    I accept that the way in which the Tribunal approached its task is not a model of decision-making. It is open to the criticism that it simply listed the factors that weighed in favour of revocation of the cancellation decision and those that were contrary to that conclusion, and then reached a conclusion without explaining how it got to that outcome. However, the Tribunal was scrupulous and detailed in its assessment of the various factors going towards that ultimate evaluative task. In other circumstances, it might be open to infer that the Tribunal did not discharge its legal duty by weighing those factors carefully as against each other and applying an evaluative mind to their respective weight. In this instance however, the absence of reasons explaining the Tribunal’s conclusion - in circumstances where the Applicant does not advance a ground contending that that itself was an error - appears to the Court to be an insufficient foundation to make good Particular D. In coming to that conclusion however the Court would not wish to endorse such a manner of decision-making. A court can conclude that where no reasons have been advanced, it is evidence of there being no good reason for a conclusion: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [45].

89    However, I am satisfied that the ground of review particularised at C is made out.

90    In its discussion of one of the primary considerations that Direction 79 had required it to take into account, the Tribunal stated as follows:

144.    Paragraph 6.3 of the Direction, which sets out the principles that inform the decision (by application of paragraph 7) to refuse to grant a visa or not, contains a principle directed to the expectations of the Australian community:

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere

145.    Sub-paragraph 6.3(6) of the Direction provides:

Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

91    The Tribunal followed that statement of the law - which I take (and Ms Lucas does not submit otherwise) to reflect its understanding of its duty to have regard to the Government’s views with respect to whether or not a visa should be granted or revoked - with its discussion of Charlesworth J’s reasoning in FYBR. That again directed attention to the provisions of sub-paragraph 6.3(6) of Direction 79.

92    Ms Lucas accepts that in doing so, the Tribunal erred. It is therefore convenient to explain the nature of that acknowledged error by setting out how Direction 79 ought to have applied in those regards.

93    Paragraph 6 of Direction 79 is as follows:

6. Preamble

6.1    Objectives

(1)    The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

(3)    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(4)    The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

6.2    General Guidance

(1)    The government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2)    In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this direction.

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

94    Paragraph 7 then provides:

7.    How to exercise the discretion

(1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

95    It is not contentious that Part C applied in the instance of the Applicant.

96    One of the primary considerations that Part C obliged the Tribunal to take into account was as provided for by paragraph 13.3: Expectations of the Australian Community. That paragraph provides (perhaps circularly and duplicatively given the terms of paragraph 7) that decision makers “should have due regard to the Government’s views” with respect to those expectations.

97    It was in applying the provisions of paragraph 13.3 that the Tribunal referred to, as applicable to its task, the provisions of sub-paragraph 6.3(6). However, as Ms Lucas concedes, that was not the material or relevant provision of Direction 79. That is because the Applicant was not a person who was a visa applicant or a person holding a short stay visa. Rather, he was a person who held a visa permitting him to remain in Australia indefinitely and who had lived in Australia for most of his life. For such persons the relevant and material provisions of Direction 79 were sub-paragraphs 6.3(5) and 6.3(7).

98    In oral argument I ventured the observation that I was troubled by the proposition that where the law requires a decision maker to comply with Direction 79 some parts of that Direction need not be complied with, as might suggest that I was sceptical of the correctness of the decision in Mataia. In that decision, Farrell J concluded that the provisions of paragraph 6 of the Direction were not mandatory relevant considerations. However, I need not express any view in that regard. It is sufficient that I am satisfied that I am entitled to accept Mr Buchhorn’s submission that that case can relevantly be distinguished. Unlike the circumstances as applied in that case, this is not an instance of a failure by the Tribunal to refer to the relevant provision sub-paragraph 6. It is a case in which the Tribunal expressly referred to an inapplicable and less beneficial provision of sub-paragraph 6 to that which in fact stated the relevant elements of government policy as it had been directed it should apply and concluded its assessment, adversely to the Applicant, on that incorrect basis.

99    In my opinion, for the Tribunal to have applied an incorrect legal test to a critical aspect of its task requires the conclusion that it fell into jurisdictional error.

100    Had the test been properly stated, the Tribunal would have had a different task with respect to forming its opinion regarding the application of a primary consideration as required by sub-paragraph 13.3. In that circumstance, it cannot be plausibly asserted that the error was not material.

101    I accept Ms Lucas’s submission that later in the Tribunal’s reasons it did refer to the actual circumstances of the Applicant’s period of residency in Australia. However, that was in respect of the other considerations to which the Tribunal had to give regard: not in respect of the primary consideration that is the subject of this ground of review.

102    In respect of its consideration of the expectations of the Australian community as paragraph 13.3 of Direction 79 made a primary consideration, it is purely speculative as to how the Tribunal might have decided the question had it applied the law to the Applicant as a holder of a visa permitting him to remain in Australia indefinitely rather than as a visa applicant or a holder of only a short term visa. In circumstances in which the Tribunal recorded findings that one of the three primary considerations it had been required by Direction 79 to have regard to weighed significantly in the Applicant’s favour and had concluded that two of the other considerations it took into account as material were also in his favour, there can be no basis for a submission that had its findings in respect of the expectations of the Australian community (a second of the three primary considerations) been different, or even differently nuanced, the ultimate balancing exercise could not have been otherwise than that which the Tribunal ultimately recorded. An evaluative matter of that kind, where there is no self-evident outcome, is properly to be remitted for the consideration of the Tribunal. It is no part of this Court’s duty to be a substitute merits review tribunal.

103    I would for those reasons uphold Ground 2 in respect of Particulars A and C.

104    This matter must be remitted to the Tribunal for reconsideration according to law.

105    The review being upheld, counsel for each party accepted that they could not resist an order for costs if the application was decided adversely to the party they were representing. The Applicant is therefore entitled to his costs as agreed or, in default of agreement, as taxed. I will make orders accordingly.

Associate:

Dated:    14 October 2020