Federal Court of Australia

Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1643

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (the Tribunal) on 12 March 2020. The Tribunal affirmed the decision of the first respondent (the Minister) to not revoke the cancellation of the applicant’s Class TY (subclass 444) visa.

2    The applicant’s amended originating application seeks the following relief:

1.    An order in the nature of certiorari quashing the Second Respondent’s decision.

2.    A writ of mandamus be issued directing the Second Respondent to determine the Applicant’s application for review according to law.

3.    An order that the First Respondent pay the Applicant’s costs of this application.

3    The amended originating application relies on the following grounds:

1.    The decision of the Second Respondent dated 12 March 2020 involved jurisdictional error as the Second Respondent failed to consider a relevant consideration in determining the Applicant’s application for review.

2.    In the alternative to Ground 1 above, the Second Respondent’s decision dated 12 March 2020 involved jurisdictional error as the Second Respondent determined the Applicant’s application for review on an incorrect understanding of the relevant law, being the requirements of paragraph 13.1.2(1)(a) of Ministerial Direction 79.

…

4.     The decision of the Second Respondent involved jurisdictional error as the Tribunal failed to consider material relevant to its decision not to exercise the discretion to revoke the mandatory cancellation, specifically the Sentencing Schedule dated 14 May 2019 produced under Summons by the Mackay Magistrates Court.

(Particulars omitted.)

Background Facts

4    The applicant is a New Zealand citizen who resided in Australia as the holder of a Class TY (subclass 444) visa from 15 September 2001.

5    On 17 May 2019, the Magistrates Court of Queensland at Mackay convicted the applicant of the offence, “dangerous operation of a vehicle and adversely affected by an intoxicating substance”. He was sentenced to a 12-month term of imprisonment with a parole release date of 16 September 2019.

6    On 5 June 2019, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), as the Minister’s delegate was satisfied that the applicant did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis. The applicant made representations on 4 July 2019 requesting that the Minister revoke the cancellation in accordance with s 501CA(4)(a) of the Act.

7    On 13 December 2019, a delegate of the Minister decided not to exercise the power conferred by s 501CA(4) to revoke the cancellation of the visa.

8    The applicant applied to the Tribunal for review of the delegate’s non-revocation decision on 20 December 2019. The Tribunal had the jurisdiction to review such a decision pursuant to s 500(1)(ba) of the Act.

9    The applicant’s application was heard by the Tribunal on 27 February 2020. The applicant called witnesses and gave oral evidence at that hearing. On 12 March 2020, the Tribunal affirmed the decision of the Minister’s delegate to not revoke the cancellation of the visa.

10    The applicant then applied for review of the Tribunal’s decision pursuant to the power conferred on the Court under s 476A(1) of the Act.

Legislation and Directions

11    Section 501(3A) of the Act provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person 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.

12    Section 501CA(4) of the Act provides:

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

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

(b)     the Minister is satisfied:

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

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

…

13    On 20 December 2018, under s 499 of the Act, the Minister issued Direction No. 79 (Direction 79). Direction 79 took effect from 28 February 2019 and remains in force.

14    Paragraph 13 of Direction 79 concerns primary considerations that the Minister must take into account when deciding whether to revoke the cancellation of a non-citizen’s visa. Those primary considerations are:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The best interests of minor children in Australia;

(c)    Expectations of the Australian community.

15    Paragraph 13.1(2) of Direction 79 provides that when considering protection of the Australian community, decision-makers should give consideration to:

(a)    The nature and seriousness of the non-citizen’s conduct to date; and

(b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

16    Paragraph 13.1.1 of Direction 79 provides that, in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

(a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

(c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

(d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

(e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

(f)    The cumulative effect of repeated offending;

(g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

(h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

(i)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

17    Paragraph 13.1.2 of Direction 79 provides that, in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal conduct or other serious conduct; and

(b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct.

The Tribunal’s reasons

18    The Tribunal’s reasons begin by identifying the issues for decision. The reasons then set out the applicant’s criminal, traffic and domestic violence history. That history included:

    In 2003, entering a dwelling house with intent to commit an indictable offence in the night, and stealing.

    On nine occasions between 2004 and 2015, driving without a licence.

    On five occasions between 2007 and 2015, driving under the influence of alcohol.

    In 2007 and 2014, committing a public nuisance.

    In 2010, failing to appear in accordance with a bail undertaking.

    In 2011, assaulting or obstructing a police officer.

    In 2017, a domestic violence order made against him.

    In 2018, dangerous driving (the offence for which he was sentenced to 12 months’ imprisonment on 17 May 2019, and which resulted in the cancellation of his visa).

19    The circumstances of an offence of obstructing a police officer on 29 December 2018 are of particular relevance for the appeal. The Tribunal described the circumstances as follows:

24.     …On 29 December 2018, according to the Applicant’s partner, while they were in their home, he stood over her and shouted at her, pushed her, poked her in the face with his finger, and emptied a packet of chips on her. She was frightened that he would harm her. She said in oral evidence:

“Basically Jake was just getting a bit too aggressive towards me trying to get me to do what he wanted, and he just took it a bit too far and I was frightened so I called the police.”

25.     The Applicant admitted in his oral evidence that he had consumed around “five cans” prior to the incident. According to the police report, police arrested the Applicant and took him to the watch house. However, the Applicant refused to move from the vehicle bay into the holding cell, he adopted a fighting stance, he repeatedly lunged towards police with clenched fists and raised hands, and he repeatedly made threats to kill and injure police. Ultimately police tasered the Applicant so that he could be restrained and moved into a holding cell. The Applicant was subsequently convicted of breaching the DVO (not being of good behaviour towards his partner) and obstructing police. He was not convicted of any violence offence.

(Emphasis added.)

20    The reasons then consider the evidence given by the applicant before the Tribunal about the circumstances of the offence. The reasons state:

26.     The Applicant’s explanation for his offending is that he was trying to get his partner to help him clean the house before his mother arrived for a visit later that day, and he was unhappy with her for not helping. He admits standing over her, shouting at her, poking her face twice and pouring chips on her, however he denies pushing her. In evidence before the Tribunal, when challenged about this denial, he said he could not have pushed her because she was lying down on the bed. He contends that the police, before taking him to the watch house, had undertaken to bring him home in time for him to go to the airport to collect his mother, however once he was there they told him they would not release him until he had “sobered up”. He said he became angry that the police had not kept their word and he admitted that he had been tasered. However, he denied adopting a fighting stance, putting his fists up or making threats. The Applicant was angry and intoxicated at this time. I prefer the contemporaneous police evidence about the conduct he engaged in to his evidence, and I accordingly find that he was physically threatening and made threats to harm and kill police.

21    The Tribunal then considers and applies the legislative framework and addresses the considerations that must be taken into account pursuant to Direction 79.

22    The reasons address each of the factors under para 13.1.1 of Direction 79 relevant to the nature and seriousness of the non-citizen’s criminal offending. Relevantly, the reasons state:

48.    Factor (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. This factor (c) adds another dimension of seriousness to the Applicant’s offences against the police. On two occasions when police were called because of the Applicant’s antisocial and/or threatening behaviour toward members of the community, he engaged in conduct that could reasonably have caused officers to fear serious injury. On one occasion he physically struggled with officers who were trying to restrain him, and on the other occasion he verbally and physically threatened them which included threats to kill. Indeed, on the second occasion the Applicant’s threatening behaviour was such that officers considered it necessary to deploy a taser.

49.     The Applicant’s behaviour in this regard constituted a direct challenge to the lawful authority that governs the community to which he now seeks to be returned. When he gave evidence before the tribunal the Applicant was asked if there were any reasons why he had problems with the police and the law. He said:

“I just have an angry problem – anger problem…when it comes to, like, myself and police officers and stuff, and I’m not a bad guy. I’m not an angry person, but I just have [sic] that angriness inside me that time, and yes, it wasn’t a very good thing to do.”

50.     The Applicant’s explanation for his behaviour goes no way to mitigating its seriousness. Furthermore, threatening to harm or kill a police officer in the course of their lawful duty is the type of conduct that strikes at the heart of the criminal justice system. This factor (c) weighs heavily in favour of non-revocation.

(Emphasis added.)

23    In the context of factor (e) of paragraph 13.1.1(1) of Direction 79, (“the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness”), the reasons state:

I now turn to the obstruct police offences. There is a detectable increase in the seriousness of the Applicant’s defiant and disrespectful conduct towards police officers. The first obstruct police offence involved the Applicant struggling with police while he was intoxicated and they were attempting to restrain him. The second involved him adopting a fighting stance, lunging toward officers and making threats to kill. Such conduct is undeniably very serious.

(Emphasis added.)

24    The reasons go on to conclude in relation to “Primary Consideration A” (Protection of the Australian community):

I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to Principle 6.3(4). I find that the nature of the Applicant’s drink-driving related offending and his offending against police to date is very serious, and if he were to re-offend, the harm that would be occasioned to others includes harm that would be very serious and potentially catastrophic. 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. With particular regard to the drink-driving related offending, and considering all of the relevant factors in paragraph 13.1.1(1), I find that Primary Consideration A weighs heavily in favour of non-revocation.

25    The reasons consider “Primary Consideration B” (Best interests of minor children in Australia), concluding that this consideration weighed moderately in favour of revocation of the decision under review.

26    The reasons consider “Primary Consideration C” (Expectations of the Australian community), finding that this consideration weighed heavily in favour of non-revocation of the decision.

27    Ultimately, the reasons conclude that application of Direction 79 heavily favoured not revoking the cancellation decision. Accordingly, the decision of the delegate was affirmed.

Consideration

28    The applicant submits that there are two broad forms of jurisdictional error:

(a)    the Tribunal failed to consider a relevant consideration (Grounds 1 and 2); and

(b)    the Tribunal ignored relevant material (Ground 4).

29    It is convenient to commence with Ground 4, since the bulk of the argument centred upon that ground.

Ground 4 — Failure to consider relevant material

30    Ground 4 alleges that the Tribunal failed to consider material relevant to its decision not to exercise discretion to revoke the mandatory cancellation. The relevant material is a Sentencing Schedule dated 15 May 2019, produced under summons by the Magistrates Court of Queensland.

31    Failure to consider relevant material in a way that affects the exercise of a power is an established ground of jurisdictional error. However, not every failure to consider relevant material amounts to jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97].

32    In SZRKT, Robertson J said at [111]–[112]:

111    …The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims...

(See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [68]–[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]–[56].)

33    In GBV18 v Minister for Home Affairs [2020] FCAFC 17, the Full Court at [31] summarised a number of principles relevant to an allegation of jurisdictional error on the ground that the Tribunal failed to consider significant material or representations. These principles include that, “The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT”. Further, “The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed”. These principles must also apply to the evidence given and submissions made in a hearing before the Tribunal of an application to revoke a cancellation decision.

34    The Full Court at [32] summarised a number of principles taken from Minister for Home Affairs v Omar (2019) 272 FCR 589, concerning the obligation of a decision-maker to “consider” a matter, as follows:

(a)    Even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(b)    Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)    The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)    The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3]…

(e)    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)    Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

35    In EVK18 v Minister for Home Affairs [2020] FCAFC 49, the Full Court held as follows:

14    In GBV18 the Full Court referred to the need for a “representation” to “clearly express” a claim: [2020] FCAFC 17 at [32(d)]. In seeking to identify those “representations” which required the consideration of the decision-maker, the Court there also used a number of like expressions such as a “clearly articulated and substantial or significant representation” and “a substantial or significant and clearly articulated claim” (GBV18 [2020] FCAFC 17 at [32(e) and (f)]). The same Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 subsequently returned to the importance of identifying those claims which may be found within a “representation” made pursuant to s 501CA(3) which attracted the need for consideration as follows:

[56]    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 [2018] FCAFC at [139], (2018) 260 FCR at 562), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.

36    In order to establish jurisdictional error, it must also be shown that the failure to consider material relevant to its decision was material. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality held at [29] that where a statute confers decision-making authority, “The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours stated at [30]:

…the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made…

37    This was confirmed by the plurality in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, which stated at [45], “A breach is material to a decision only if compliance could realistically have resulted in a different decision”.

38    These authorities confirm that to establish jurisdictional error by reason of a failure to consider relevant material, it is necessary to demonstrate that:

(1)    The Tribunal did not consider the material.

(2)    The material was relevant and sufficiently important to make the error sufficiently serious to be considered a jurisdictional error. The relevant factors include the cogency of the material and its place in the assessment of the claims made.

(3)    If the material had not been overlooked, it could realistically have resulted in a different decision.

39    The applicant bears the onus of establishing that the relevant material was not considered: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 at [38]; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]. The Court has recognised that “necessary caution” should be exercised when an applicant asserts that proper consideration was not given to a particular matter, given that such a contention potentially conceals an impermissible challenge to the merits of the decision: King v Minister for Immigration and Border Protection (2014) 142 ALD 305; [2014] FCA 766 at [18].

40    The applicant alleges that the material not taken into account was the Sentencing Schedule. That Schedule contains a description of the facts relating to an offence of obstructing a police officer committed on 29 December 2018. The relevant paragraph is reproduced below:

Upon arrival at Mackay Watch-house and whilst still under arrest, the defendant became aggressive towards Police. The defendant refused to move from the vehicle bay into the holding cell. The defendant adopted a fighting stance, and repeatedly lunched towards Police with clenched fists and raised hands. The defendant repeatedly made threats to kill and injure Police whilst performing these actions.

(Striking-through done by hand in original).

41    The Sentencing Schedule was evidently prepared by the prosecution. As the Sentencing Schedule was produced to the Tribunal by the Magistrates Court, it must be inferred that it was handed up to the Magistrate by the prosecutor at the sentencing hearing. It should be inferred that the striking-through was done by the prosecutor, or by the Magistrate at the request of the prosecutor. It should also be inferred that the striking-through was intended to indicate that the facts alleged in the deleted sentence were no longer relied upon by the prosecution.

42    The applicant submits that there is no reference in the Tribunal’s reasons to the Sentencing Schedule, which leads to an inference that the Tribunal failed to consider the Sentencing Schedule.

43    It may be recalled that the Tribunal found that:

However, [the applicant] denied adopting a fighting stance, putting his fists up or making threats. The Applicant was angry and intoxicated at this time. I prefer the contemporaneous police evidence about the conduct he engaged in to his evidence, and I accordingly find that he was physically threatening and made threats to harm and kill police.

44    The “contemporaneous police evidence” preferred to by the Tribunal was a “Court Brief” produced to the Tribunal under summons by the Queensland Police Service and tendered by the Minister. The Court Brief states that:

Upon arrival at Mackay Watch-house and whilst still under arrest, the defendant became aggressive towards Police. The defendant refused to move from the vehicle bay into the holding cell. The defendant adopted a fighting stance, and repeatedly lunged towards Police with clenched fists and raised hands. The defendant repeatedly made threats to kill and injure Police whilst performing these actions.

45    This was the same language as used in the Sentencing Schedule, except that the last sentence was struck through in the Sentencing Schedule. The discrepancy seems explicable by the prosecution having made a late decision that the last sentence would not be relied upon and then the sentence being struck-through in pen by the prosecutor, or by the Magistrate at the request of the prosecutor.

46    The Tribunal’s finding that, “I prefer the contemporaneous police evidence about the conduct he engaged in”, must have been made by reference to the Court Brief. The fact that the Tribunal made no reference to the deletion of the words, “The defendant repeatedly made threats to kill and injure Police whilst performing these actions” strongly suggests that the Tribunal was not aware of the deletion from the Sentencing Schedule.

47    However, the Minister submits that there are two relevant principles that govern drawing inferences from a decision-maker’s statement of reasons, articulated by the High Court in BVD17 at [38]: that, “a statement of reasons must be read fairly and not in an unduly critical manner”; and that it “must be read in light of the content of the statutory obligation pursuant to which it was prepared”.

48    The Minister submits that the Tribunal had no statutory obligation to refer to the Sentencing Schedule in its reasons, and that a lack of direct reference to specific evidence or material is not indicative of the Tribunal not considering a particular item of evidence. The Minister emphasises that the Tribunal is not required to set out the matters it considered when it made its decision. Under s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal is required to give reasons for its decision either orally or in writing. Where the reasons are given in writing, s 43(2B) requires that, “those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.

49    There is no obligation on a decision-maker to refer to evidence that might be seen to be adverse or contrary to the findings of fact made by a decision-maker, or to give reasons why a particular piece of evidence was rejected or attributed less weight than another item of evidence: see eg NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387 at [9]; AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 at [51]–[60]; BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354 at [88]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45].

50    The Minister observes that the Tribunal’s reasons make reference on numerous occasions to the tender bundle before it, including specifically the part of the tender bundle which included the Sentencing Schedule. It is submitted by the Minister that this, “makes it difficult for any inference to be drawn that the sentencing schedule was overlooked”, particularly because it would have to be inferred that the Tribunal read only a few documents in the relevant part of the tender bundle, but not the entirety of the Sentencing Schedule. The Minister submits that this weighs against any inference that the Sentencing Schedule was not considered, relying on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [73].

51    While I accept that the Tribunal had regard to the Sentencing Schedule generally, I find that it did not consider, in the sense of engaging in an active intellectual process with, the deletion of the words, “The defendant repeatedly made threats to kill and injure Police whilst performing these actions”. Consideration of the deletion of these words could have allowed the Tribunal to draw an inference that the prosecution had not relied upon them. That would have been, in part, consistent with the applicant’s denial of, “adopting a fighting stance, putting his fists up or making threats”. The Tribunal clearly took into account the other evidence touching upon that issue, namely the applicant’s oral evidence and the extract from the Court Brief. If the Tribunal had not overlooked the deletion, its relevance is likely to have been expressly discussed in the Tribunal’s reasons.

52    It is not to the point for the Minister to say that the Tribunal was not obliged to specifically refer to the deletion. An examination of the reasons as a whole shows that the Tribunal was concerned to made findings and to explain the evidence and reasoning for its findings. It is simply implausible, when regard is had to the otherwise careful content and structure of the reasons, that the Tribunal would have referred only to the passage from the Court Brief but not the deletion of the passage in the Sentencing Schedule if it had been aware of the deletion. It is probable that the Tribunal was unaware of the deletion.

53    However, in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56], the Full Court warned against, “elevat[ing] a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution”. In the context of an argument that the Tribunal overlooked relevant material, it is relevant to consider whether the deletion in the Sentencing Schedule was drawn to the attention of the Tribunal, or, at least, arose clearly from the material before the Tribunal. The place of the material in the context of the presentation of the claim is relevant to assessment of whether an error was made and its seriousness.

54    The Sentencing Schedule was tendered by the Minister as part of a bundle of material at the outset of the hearing before the Tribunal. The issue of the applicant’s denial of the making of verbal threats did not arise in the applicant’s opening or his evidence–in-chief, but did arise in cross-examination when the Minister’s solicitor asked the applicant about some of the offences, including the offence of obstruct police. Following the cross-examination, the applicant’s solicitor gave a detailed oral address. In the course of the address, the Tribunal made reference to the allegation that the applicant had made threats to the police officers. The applicant submitted that the offence did not involve any physical assault and that the offence should be regarded as less serious because of this. The applicant’s solicitor did not submit that the applicant had not verbally threatened police and did not refer to the struck-through sentence in the Sentencing Schedule. An inference is available that it was either overlooked by the solicitor, or regarded by the solicitor as being of insufficient significance to draw to the Tribunal’s attention.

55    In circumstances where the striking-through of the sentence in the Sentencing Schedule was not drawn to the attention of the Tribunal, nor relied upon by the applicant’s solicitor, I do not accept that the Tribunal committed jurisdictional error by failing to consider the deletion.

56    Although this conclusion is enough to dispose of Ground 4, I will consider the remaining issues arising under this ground in case I am wrong.

57    The applicant submits that the deletion from the Sentencing Schedule was of central importance to the Tribunal’s factual enquiry relating to the conduct underlying the applicant’s conviction for the offence of obstruct police officer, and that the error was therefore sufficiently serious to amount to jurisdictional error.

58    In the Tribunal’s reasons, factors (c) and (e) of para 13.1.1 of Direction 79 were considered to weigh heavily in favour of non-revocation. The Tribunal’s consideration of factors (c) and (e) involved findings that threatening to kill or harm police officers is “the type of conduct that strikes at the heart of the criminal justice system” and is “undeniably very serious”. The applicant submits that the Tribunal’s finding that the applicant, “made threats to harm and kill police” was central to the Tribunal’s ultimate decision not to exercise the discretion conferred by s 501CA(4) of the Act, and that the evidence of the deletion was therefore pivotal to the decision. It is submitted that, as a result, the Tribunal’s failure to consider the deletion from the Sentencing Schedule amounts to jurisdictional error.

59    The Minister submits that factors (c) and (e) were only two of six factors in para 13.1.1 of Direction 79 that went to the issue of the seriousness of offending, and that even had the Tribunal explicitly considered the struck-out material, it would not have made a difference to the outcome.

60    The disputed issue was that the applicant, “denied adopting a fighting stance, putting his fists up or making threats”. The striking-through deleted the allegation that the applicant, “repeatedly made threats to kill and injure Police”. This was a reference to verbal threats. The deletion did not affect the allegation that the applicant, “adopted a fighting stance, he repeatedly lunged towards police with clenched fists and raised hands”. Accordingly, the applicant must have been sentenced by the Magistrate on the basis that he made physical, but not verbal, threats to the police.

61    At para [50] of its reasons, the Tribunal states that factor (c), namely that the applicant threatened to harm or kill a police officer, “weighs heavily in favour of non-revocation”. At [48], the Tribunal notes that the applicant “verbally and physically threatened [police officers] which included threats to kill”. Accordingly, the Tribunal’s conclusion that factor (c) weighs heavily in favour of non-revocation included not just a finding that the applicant made verbal threats of harm, but also a finding that the applicant made physical threats. This latter finding would not have been influenced by the struck-out material in the Sentencing Schedule, which concerned only verbal threats. While factor (c) was considered to weigh heavily in favour of non-revocation, I consider that the struck-out material is unlikely to have made any material difference to the weight given to factor (c), and to the ultimate decision.

62    Similarly, in the context of factor (e) of paragraph 13.1.1(1), the Tribunal found that the offence, “involved him adopting a fighting stance, lunging toward officers and making threats to kill. Such conduct is undeniably very serious”. Again, the Tribunal took into account, not merely the verbal threats, but also the physical threats. I consider that the struck-out material is unlikely to have made any material difference to the weight given to factor (e). It is unlikely to have made any difference to the ultimate decision, even if considered in combination with factor (c).

63    Further, I accept the Minister’s submission that the making of verbal threats to police in the course of one offence was only one of many factors that the Tribunal found to weigh against revocation of the cancellation decision. In particular, the applicant’s criminal history was extensive and the issue in dispute concerned only part of one offence out of many. I do not consider that the question of whether the applicant had made verbal, as well as physical, threats to police in respect of one offence was of sufficient centrality to the Tribunal’s decision to make the error in overlooking the deletion of sufficient seriousness to amount to jurisdictional error.

64    It would also need to be demonstrated that the failure of the Tribunal to consider the deletion from the Sentencing Schedule was material in the sense that if it had not been overlooked then it could realistically have resulted in a different decision: SZMTA at [45]. The question of the materiality of a failure to consider relevant material is an ordinary question of fact in respect of which the applicant bears the onus of proof: SZMTA at [46]. For the reasons I have given when considering the seriousness of the error, I do not consider that the Tribunal’s failure to consider the Sentencing Schedule was material to the outcome of the decision.

65    Therefore, the fourth ground must be dismissed.

Ground 1 — Failure to consider a relevant consideration

66    The first ground is that the Tribunal failed to consider a relevant consideration. It is alleged that while the Tribunal considered the nature of the harm that might manifest should the applicant engage in further criminal or other serious conduct, as required by para 13.1.2(1)(a) of Direction 79, it did not consider the probability of that harm manifesting. In failing to consider the probability of harm manifesting, it is alleged that the Tribunal incorrectly applied the requirements of para 13.1.2(1)(a).

67    The applicant submits that proper consideration of the nature of harm that might manifest required the Tribunal to estimate the risk of any specific harm manifesting if the applicant were to engage in further offending. In support of this, it was noted that para 13.1.2 is entitled, “The risk to the Australian community”. The term “risk” is submitted to imply that some probabilistic assessment needs to be made. It is submitted that the Tribunal misapprehended the task required of it by para 13.1.2(1)(a), and that this misapprehension caused it to fail to consider a matter it was required by law to take into account.

68    The Minister submits that there is nothing in the language of para 13.1.2(1)(a) that requires an assessment of the probability of any harm manifesting. It is also submitted that, when read as a whole, Direction 79 is primarily concerned with guarding against the potential of the Australian community being harmed. Once that potential exists, the particular probability of harm manifesting if re-offending occurred is not something that Direction 79 appears to be specifically concerned with or interested in. Further, it is submitted that the applicant’s approach would be administratively unworkable, and that assessing the probability of harm would often be impossible to predict.

69    A number of decisions of the Full Court have established that failure to comply with a direction made under s 499 of the Act may be a jurisdictional error: see Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [55]. Therefore, failure to comply with a requirement in Direction 79 may amount to jurisdictional error.

70    The Tribunal was required by para 13.1.2(1)(a) of Direction 79 to consider, “The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”. There is no reference in subparagraph (a) to “risk” or “probability”. All that is required is that the Tribunal consider the “nature of the harm”.

71    The Tribunal was not required under s 501CA(4) of the Act to evaluate risk in a particular way or ascribe any particular characterisation to the quality of the risk: Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [60]–[61]; BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68]. Direction 79 does not change that. All para 13.1.2(1) does is require that the decision-maker “have regard to” two particular factors relevant to risk, namely the nature of potential harm under subparagraph (a), and the likelihood of the non-citizen engaging in further criminal conduct under subparagraph (b). Taken together, subparagraphs (a) and (b) require a quantification of the risk of harm of the type that was previously caused or might have been caused. However, the Tribunal was not required to evaluate that risk in a particular way, and so was not required to consider the probability of harm manifesting.

72    Therefore, the Tribunal’s decision did not involve jurisdictional error, as it was not required to consider the probability of harm manifesting under para 13.1.2(1)(a) of Direction 79.

73    In any event, the Tribunal did in fact conduct an assessment of the probability of harm manifesting at [70] of its reasons, where it stated that:

While, there is no evidence before me that the Applicant’s previous offences have, in fact, resulted in harm to any person, the risk of further similar offending resulting in injuring or killing members of the community is real and substantial.

(Emphasis added.)

74    The first ground is dismissed.

Ground 2 — Failure to consider was legally unreasonable

75    The second ground is that the Tribunal determined the application for review on an incorrect understanding of the requirements of para 13.1.2(1)(a) of Direction 79. However, in its oral submissions, the applicant instead advanced an alternative argument that the Tribunal’s decision was legally unreasonable in that it failed to give weight to the relevant part of the Sentencing Schedule that had been struck out. I will treat the applicant’s oral submissions as having overtaken the second ground as set out in the amended originating application.

76    Reliance was placed on the principle that administrative decision-makers should be cautious before making a finding of fact inconsistent with findings made by a sentencing court, as described by Derrington J in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at [167].

77    The applicant submits that it was unreasonable for the Tribunal to give little or no weight to the Sentencing Schedule as it would involve the making of a finding of fact that was inconsistent with the finding made by a sentencing court, in this case the Magistrate’s decision to strike-out the sentence in the Sentencing Schedule.

78    The unreasonableness ground assumes that the Tribunal did consider the deletion from the Sentencing Schedule, but then failed to give it appropriate weight or any weight. However, the attention of the Tribunal was not drawn to the deletion from the Sentencing Schedule and the Tribunal therefore did not have regard to it. In these circumstances, the Tribunal’s exercise of power was not legally unreasonable.

79    The second ground is dismissed.

Conclusion

80    The applicant has not established any of his grounds of review. The application is dismissed with costs.

Associate:    

Dated:    16 November 2020