Federal Court of Australia

Grima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant will pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 December 2020. The Tribunal affirmed the decision of a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s visa. The Tribunal’s decision is Grima and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5074 (Reasons).

2    By his originating application filed on 19 January 2021, the applicant seeks to challenge the Tribunal’s decision on two grounds. First, it is said that the Tribunal erred in dealing with the primary consideration of the protection of the Australian community. Second, the applicant contends that the Tribunal denied the applicant procedural fairness by failing to invite him to comment on a “concern” referred to in [132] of Reasons.

3    For the reasons that follow, the application will be dismissed.

background

4    The applicant is a citizen of Malta. He was born in December 1980 and arrived in Australia in November 1982, when he was almost two years old.

5    The applicant began using drugs from the age of 18, with increased use of methamphetamines (commonly referred to as “ice”) and gamma-hydroxybutyrate (commonly referred to as “GHB”) in the period from 2007 to 2018.

6    The applicant’s criminal record dates back to February 2007. The offences for which the applicant has been convicted, and the sentences that he received, are summarised in the Minister’s statement of facts, issues and contentions filed in the Tribunal.

7    In 2015, after the applicant’s ex-partner was murdered, the applicant entered a “spiral of drug taking”. Over the following years, the applicant’s drug taking and offending became more serious. In particular, in April 2017, the applicant was convicted of a number of offences, including “reckless conduct endanger serious injury” and “reckless conduct endanger life”, for which he was given an aggregate sentence of 7 months’ imprisonment and 180 hours of community service. In October 2018, the applicant was convicted of a number of offences, including “make threat to kill”, “intentionally cause injury”, “contravene family violence intervention order with intent to harm/fear” and “false imprisonment”, for which he was given an aggregate sentence of 14 months’ imprisonment.

8    The applicant’s convictions in October 2018 arose from an incident of extreme violence that the applicant committed against his then partner. The Tribunal described that incident in [64] of its Reasons:

The 2018 sentencing remarks record the [applicant’s] acknowledgement of the seriousness of his offending against MP, who was protected at the time by a Final Family Violence Intervention Order (FFVIO). Her Honour stated these were ‘serious charges before the court.’ The Statement of Alleged Facts prepared by Victoria Police, which the [applicant] does not dispute, contains the following description of the violence committed against MP over several hours:

(a)     MP recognised the [applicant]’s aggressive demeanour and went to leave;

(b)    The [applicant] grabbed MP in a bear hug from behind, threw her on a bed, pulled her hair, and punched her in the face, causing bleeding from the nose and lip;

(c)    MP attempted to flee the house, but was again intercepted by the [applicant] who kicked her in the vagina causing significant pain;

(d)    The [applicant] grabbed MP by the hair and using a pair of bolt cutters, struck her on the left upper thigh causing a long laceration exposing bone. He allowed MP to bandage her leg and change her pants;

(e)    The [applicant] made a noose from rope and ordered MP to place it around her neck. He retained the end of the rope to prevent MP moving too far and smoked methylamphetamine from a glass pipe. The [applicant] lit and re-lit the pipe from the kitchen stove, using the noose to lead MP between rooms;

(f)    Over several hours the [applicant] kept the noose around MP’s neck and continued to punch her in the face while abusing her and making threats such as:

(i)     ‘You are going to die today;’

(ii)    ‘I am going to mince your body;’

(iii)    ‘Once a week your limb will go off;’ and

(iv)    ‘Oh yeah it’s happening today.’

(g)    The [applicant] subsequently used more rope to ‘hog-tie’ MP by forcing her to lie on her stomach and linked the noose around her neck to rope around her ankles. He left MP in that position before leaving the property at about 6:00 pm;

(h)    MP managed to free one hand, used nearby pliers [to] cut the restraints, and escaped onto the street to seek help. The [applicant], who was further down the street, observed MP escaping and intercepted her at a neighbouring home. He approached MP, threatened to hit her over the head with a bottle, and grabbed her to lead her away. MP, extremely weakened by this stage and unable to stand, struggled and screamed for help. A bystander intervened and a neighbour called Triple-Zero for police assistance. The [applicant] fled on a bicycle.

(Citations omitted.)

9    On 15 January 2019, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Act. The applicant was invited to make representations about the revocation of the decision, and he made representations in response to that invitation.

10    On 28 September 2020, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. The applicant applied to the Tribunal for review of that decision.

11    On 7, 8 and 10 December 2020, the applicant attended a hearing before the Tribunal, at which he was represented by counsel.

12    On 16 December 2020, the Tribunal decided to affirm the delegate’s decision.

GROUNDS OF REVIEW

13    The applicant’s written submissions described the grounds of review as follows:

(1)    Ground 1: the Tribunal is said to have fallen into jurisdictional error on the basis that the Tribunal’s consideration of the applicant’s risk of reoffending miscarried, and/or the Tribunal misconstrued and/or misapplied cl 13.1.2 of Direction 79;

(2)    Ground 2: the Tribunal is said to have fallen into jurisdictional error on the basis that it failed to provide procedural fairness in relation to a concern raised at [132] of its Reasons.

Ground One

14    The applicant’s first ground is that the Tribunal erred in dealing with the primary consideration of the protection of the Australian community. The applicant contends that the Tribunal was required, and failed, to “disaggregate the risk that [the applicant] would engage in very serious, life-threatening offending from the risk that he would engage in less serious offending”.

15    In deciding whether there was “another reason” to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act, the Tribunal was required by s 499(2A) of the Act to comply with Direction 79. Clause 13.1(2) of Direction 79 provided that, when considering the protection of the Australian community, the Tribunal should give consideration to the “nature and seriousness of the [applicant]’s conduct to date”, and to the “risk to the Australian community should the applicant commit further offences or engage in other serious conduct”. Clause 13.1.2(1) of Direction 79 provided 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 or other serious conduct; and

(b)     The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

16    The question raised by ground one is whether the Tribunal complied with the requirements of cl 13.1.2(1) of Direction 79.

Applicant’s submissions

17    The applicant submits that the word “cumulatively” in the chapeau of cl 13.1.2(1) should be understood as requiring decision-makers to take account of the seriousness of prospective offending in the light of how likely it is to occur. The applicant submits that, where the likelihood of different categories of prospective offending or different degrees of prospective harm might be thought to vary, the task required by cl 13.1.2(1) may only sensibly be completed by a decision-maker differentiating the risk in relation to each category.

18    The applicant submits that this construction of cl 13.1.2(1) is consistent with the obiter of Steward J in DFW18 v Minister for Home Affairs [2019] FCA 599; 165 ALD 259 (DFW18) where his Honour at [38] said that a failure to distinguish between various categories or degrees of offending in undertaking a risk analysis may amount to error. Steward J stated at [38] of DFW18:

On balance, I am prepared to accept that the Tribunal’s reference to “offences” at [50] was intended to encompass all of the applicant’s prior offending. However, by not considering that the risk of re‐offending might be different for different offences, or categories of offences, the Tribunal, in my view, may have erred. It may be accepted that in some cases it is appropriate to consider the risk of re‐offending in a global way. [Salahuddin v Minister for Immigration & Citizenship [2013] FCA 588] was perhaps such a case. But, here, because of the sheer number and variety of offences committed, the Tribunal member perhaps needed to address the issue of risk by reference to different categories of offences, possibly by a consideration of groups of like offences, and then judge whether a “moderate” risk existed in relation to each category or type of offence. That analysis did not take place. If this had been a ground of review, I would have been inclined to conclude that the Tribunal had erred in its consideration of risk under Direction No. 65. As ground two did not express an error of this kind, I say no more about it.

19    The applicant submits that, in the present case, the Tribunal expressed its conclusion that there was an unacceptably high risk that the applicant would reoffend in a global, rolled-up way. The applicant submits that this is evident in the following passage at [139] of the Tribunal’s Reasons:

The Tribunal considers there is an unacceptably high risk that the Applicant will reoffend if released, causing further serious harm that should not have to be tolerated by the Australian community. This primary consideration weighs very substantially against revocation.

20    In reaching that conclusion, the Tribunal noted at [137] that it preferred the risk assessments conducted by the Victorian Department of Justice (DOJ), finding risk of reoffending to be moderate or high, to the expert opinion of a psychologist, Mr Healey, that the risk of reoffending was low.

21    The applicant submits that the DOJ risk assessments were conducted in April 2017 and May 2018, including for the purpose of making recommendations concerning the suitability of a community corrections order. In the case of the April 2017 report, it was prepared in connection with the applicant’s convictions on 12 April 2017 for burglary, theft, reckless conduct endangering life, criminal damage and related offences. The May 2018 report was prepared in connection with the applicant’s conviction for breaching the community corrections order imposed on 12 April 2017.

22    In the applicant’s submission, it is significant that both DOJ reports were prepared before the applicant’s “most serious offending”, which was committed in August 2018. The applicant submits that neither report could have had in mind prospective offending of the type or seriousness that was committed in August 2018. In other words, the applicant submits that the DOJ reports’ conclusions that the applicant’s risk of reoffending was moderate or high did not encompass a conclusion that the applicant was a moderate or high risk of committing offences of the nature that were committed in August 2018.

23    The applicant submits that it was offending of the nature and seriousness committed in August 2018 or even greater seriousness including the potential death of a victim that was considered by the Tribunal under the rubric of the nature of prospective harm for the purposes of cl 13.1.2(1)(a). The applicant submits that the Tribunal made no attempt to disaggregate the risk that the applicant would engage in very serious, life-threatening offending from the risk that he would engage in less serious offending.

24    In the applicant’s submission, it should be concluded that the Tribunal erred in the way contemplated by the obiter of Steward J in DFW18. The applicant submits that the Tribunal’s error manifested in two ways. First, by its failure to expressly analyse risk by reference to different categories of prospective offending and different degrees of prospective harm to the community. Second, by its reliance on DOJ risk assessments that predated the applicant’s most serious offending to conclude that the risk of reoffending was “unacceptably high”. In this way, the applicant submits the Tribunal necessarily failed to consider the highest degree of prospective harm in the light of its likelihood of occurring as commanded by cl 13.1.2(1) of Direction 79.

25    The applicant submits that the Tribunal’s error was material because there is the possibility that, if it had properly considered the risks to the Australian community in accordance with the terms of the Direction, it may realistically have come to a different conclusion. The Tribunal’s error was therefore, in the applicant’s submission, jurisdictional.

Minister’s submissions

26    The Minister submits that the obiter comments of Steward J in DFW18 need to be understood in context. In DFW18, the applicant’s criminal record involved over 150 offences committed over a period of 35 years, during which time the applicant served 18 sentences of imprisonment. The Minister submits that, in those circumstances, it was understandable why Steward J might have considered it desirable for the Tribunal to draw some distinction between different categories of offences. The Minister submits that the obiter comments of Steward J in DFW18 should not be taken as a statement of what cl 13.1.2(1) of Direction 79 requires. Those comments have not formed part of the ratio of any decision that the Tribunal failed to comply with cl 13.1.2(1) of Direction 79.

27    The Minister submits that the real issue is whether the proper inference to draw from the Tribunal’s Reasons is that it “in fact undertook its task of decision-making substantially in accordance with [Direction 79]”: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 229 FCR 290 (Salahuddin) at [24]. The Minister submits that, in determining whether the Tribunal has undertaken its task of decision-making substantially in accordance with the Direction, it is necessary to bear in mind the well-established principles concerning the way in which the Tribunal’s Reasons are to be interpreted, and pay due regard to the care and attention given by the Tribunal to its fact-finding and reasoning process: Salahuddin [19] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

28    In this case, the Minister submits that, for the reasons given below, the proper inference to draw from the Tribunal’s Reasons is that the Tribunal undertook its task of decision-making in accordance with the requirements of cl 13.1.2(1) of Direction 79.

Consideration of Ground One

Principles

29    In Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, French CJ, Kiefel, Bell and Keane JJ stated at [64]:

Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.

30    It follows that the issue that arises in relation to ground one is the same issue that was identified by Katzmann J at [54] of Minister for Immigration and Citizenship v Obele [2010] FCA 1445; 119 ALD 358:

Thus, the real issue between the parties was the proper inference to be drawn from the Tribunal’s reasons as to whether it had performed the task prescribed for it by the [relevant] Direction …

31    As to Steward J’s statements at [38] of DFW18¸ those statements do not form part of the ratio decidendi of that case. Justice Steward’s statements are qualified. His Honour stated that, “by not considering that the risk of re‐offending might be different for different offences, or categories of offences, the Tribunal … may have erred” (emphasis added). Justice Steward stated that, “because of the sheer number and variety of offences committed, the Tribunal member perhaps needed to address the issue of risk by reference to different categories of offences, possibly by a consideration of groups of like offences” (emphasis added). His Honour stated that, “[i]f this had been a ground of review, [Steward J] would have been inclined to conclude that the Tribunal had erred in its consideration of risk under Direction No. 65” (emphasis added). DFW18 was also a case that involved a particularly lengthy history of reoffending and a very high number of offences. In these circumstances, Steward J’s statement at [38] of DFW18 should not be elevated to the level of a governing requirement of what the Tribunal is required to do in every case to comply with cl 13.1.2 of Direction 79.

Application

32    I am satisfied that the proper inference to draw from the Tribunal’s Reasons is that it in fact undertook its task of decision-making substantially in accordance with Direction 79. That is evident, in my opinion, when one considers the fact finding and the reasoning process undertaken by the Tribunal as disclosed by its Reasons.

33    First, the Tribunal dealt with the protection of the Australian community in [62] to [139] of its Reasons.

34    Second, in considering the nature and seriousness of the applicant’s conduct to date at [63]-[69] of its Reasons, the Tribunal noted that the applicant’s offending could be grouped into five categories (which were set out at [67] of the Reasons), the largest of which was “offences involving violence, threat of violence, possession of weapons, harassment”. The Tribunal considered the matters set out in cl 13.1.2(1) of Direction 79 in relation to the applicant’s past conduct from [70] of the Reasons.

35    Third, in considering the risk to the Australian community at [70]-[139] of the Reasons, the Tribunal began by identifying the nature of the inquiry that it was required to undertake at [70]-[73]. The Tribunal correctly observed that it was required “to assess the risk the applicant poses to the Australian community in the event he reoffends, taking into account both the nature of any harm and its probability”: Reasons, [71]. It is evident from the Tribunal’s Reasons at [70]-[73] that the Tribunal was well aware that it was required to assess not just the likelihood of any further offending, but the nature of the consequences of that offending, and the likelihood of those consequences occurring. At [72] of the Reasons, the Tribunal stated:

Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [111]:

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

(footnote omitted[.])

36    Fourth, the Tribunal then embarked on a detailed consideration of the evidence and submissions relevant to the risk to the Australian community at Reasons [74]-[126]. The Tribunal in its Reasons linked the applicant’s offending to his drug use at [79] and [80] of the Reasons, where the Tribunal stated:

The [applicant] stated in his 2019 Personal Circumstances Form (PCF) that his offending in recent years ‘was triggered’ by the upsetting murder of BG’s mother in 2015. He claimed this caused him to relapse into drug abuse and enter a ‘downward spiral’ that affected his ‘emotional stability.’ The [applicant] described his drug use in one part of his evidence as ‘intermittent and … escalating.’ Elsewhere he claimed it was ‘continuous drug use’ arising from the influence of negative peers; and as his drug taking ‘increased over the years,’ so did his offending.’ The [applicant] referred to a ‘toxic’ relationship with MP and that they ‘enabled each other’s drug use.’ The evidence discloses, however, that drug use appears to have characterised most of the [applicant]’s past romantic relationships. The psychologist, Mr Healey, referred to the [applicant]’s relationship with BG’s mother as ‘rather unstable as both were using illicit drugs.’ Mr Healey also stated in his report that DC was addicted to the ‘potent stimulant ice;’ and that MP was ‘addicted to ice…GHB and became regularly involved in theft.’ The [applicant]’s evidence is that during the relationship with MP he received significant funds from a property settlement and tax return, which escalated their drug use ‘quite significantly,’ with ‘no inhibitions to their drug taking.’

It was submitted on the [applicant]’s behalf that ‘the mixture of amphetamines and alcohol caused him to become aggressive and…in the absence of these, he is not at all a violent or aggressive person.’ It was further submitted that his ‘drug dependency was not properly acknowledged or addressed until his incarceration for the offence giving rise to the cancellation of his visa.’ It is claimed that his most recent incarceration has resulted in greater ‘insight and awareness of his previous triggers or stressors that precipitated his downward spiral of drug and alcohol use and subsequent offending.’

37    Consistent with that evidence, the Tribunal observed that the applicant’s counsel submitted that “the mixture of amphetamines and alcohol use caused [the applicant] to become aggressive”: Reasons at [80] and [122].

38    Fifth, the Tribunal next set out its findings about the risk to the Australian community at [127]-[139] of its Reasons. The Tribunal began by expressly identifying the types of harm that could occur if the applicant engaged in further criminal or other serious conduct in the following terms at [127] of the Reasons:

The potential harm should the Applicant re-engage in similar violent crimes, to those he was convicted of in 2018, is very serious and could result in death. A repeat of other offending could cause serious physical, psychological or financial harm to victims.

39    It is apparent that the Tribunal clearly distinguished, in [127] of its Reasons, between the type of harm that would follow from further offending of the kind for which the applicant was convicted in October 2018, and the types of harm that would follow from further offending of other kinds for which the applicant had been convicted in the past. The Tribunal characterised the latter type of harm as “serious”, and noted that it could include “serious physical … harm”. That is consistent with the Tribunal’s recognition that the applicant had been convicted of a number of violent offences in the period before October 2018.

40    In this respect, at [34] of the Reasons, the Tribunal stated:

The [applicant] agreed a police record referring to him damaging DC’s car in 2013 was accurate except for the reference to him chasing her with a crowbar … He agreed he was holding a crowbar, had smashed DC’s car window with it, and this offending resulted in his 2013 convictions of Make threat to kill and Tamper with motor vehicle. He also agreed that he was under the influence of drugs, that this offending was serious, and stated he was ‘sorry and ashamed’ of his actions.

41    At [35] of the Reasons, the Tribunal stated:

The [applicant] was asked about a police record referring to an incident with DC in September 2015, during which he was reportedly abusive and threatening while demanding money, which caused DC to call police. The [applicant] is reported to have subsequently driven into DC’s driveway at high speed, with attending police managing to avoid his vehicle by using the fence as cover. It was further reported he then confronted police by ‘yelling and screaming’ at them in a threatening manner. The [applicant] explained he was drug-affected, did not know the police were there, was ‘nowhere near driving at police,’ and claimed that any offending against police was unintentional.

42    At [36] of the Reasons, the Tribunal noted that the applicant “was asked about another police report involving DC in May 2018, where he reportedly hit and made threats against her, causing her to fall and drop their infant child”. At [40] of the Reasons, the Tribunal stated:

The [applicant] agreed the police reports in evidence were a contemporaneous record of what was reported to them during their investigations. Given his evidence about persistent drug use and alcohol misuse, he was asked whether the police records were more accurate than his recollections. He agreed they could be.

43    At [37] of the Reasons, the Tribunal stated:

When asked about a record in evidence referring to him being abusive and violent to his father in 2017, by threatening to kill him and then driving a vehicle towards him because his father was trying to stop him leaving their home in breach of bail conditions, the [applicant] agreed the record was ‘pretty accurate’ …

44    At [40] of the Reasons, the Tribunal stated:

When asked about his most serious offending in 2018, the [applicant] agreed that a Preliminary Brief prepared by police was accurate. This report stated that the [applicant] punched MP in the face and head, pulled her hair, kicked her in the vagina, struck her on the left thigh with bolt cutters exposing bone, made a noose with which he controlled MP’s movements while he smoked methylamphetamine from a glass pipe, made threats to kill her, ‘hog-tied’ her with rope around her neck to her ankles, and left her bound while he left the property. He also threatened MP in the street with a bottle after noticing she escaped his restraints …

45    In addition, and as stated above, at [67] of the Reasons, the Tribunal recognised that the applicant’s history of offending involved several different categories of offences, and in [67(a)] the Tribunal categorised several offences involving violence, the threat of violence, possession of weapons and harassment. There are more offences in that category than simply the latest offending in 2018 for which the applicant was convicted.

46    In these circumstances, these parts of the Reasons evidence a series of violent offences since 2013. The latest offence in 2018 was not the only occasion on which the applicant had engaged in violent conduct. As a consequence, the DOJ reports (referred to above) remained relevant to an assessment under cl 13.1.2(1) of Direction 79.

47    Sixth, the Tribunal noted several other matters relevant to its assessment of the risk to the Australian community. In particular, it:

(1)    noted that the applicant had attempted to diminish his culpability and lacked insight into his offending: Reasons, [128]-[131];

(2)    accepted that there was a close correlation between the applicant’s drug use and his offending: Reasons, [133];

(3)    observed that there was a “pattern of escalated drug taking and reoffending that has continued for over a decade”: Reasons, [133]. The Tribunal also stated that, “[f]rom 2017 onwards, the applicant was convicted of even more serious offences involving violence or the threat of violence, drugs or weapons possession, conditional liberty breaches, and dishonesty offending”: Reasons, [134]; and

(4)    noted that the applicant had had several past opportunities to change his life, including rehabilitative programs, but had failed to do so: Reasons, [134].

48    Seventh, the Tribunal went on to explain in detail the reasons why it did not accept the evidence of a psychologist, Mr Healey, that the applicant’s risk of reoffending was “low”: Reasons, [136]. The Tribunal said that it preferred the assessments set out in two reports by the DOJ, one dated April 2017 and the other dated May 2018: Reasons, [137]. The Tribunal also considered whether the applicant had been successfully rehabilitated in the period since the DOJ reports had been prepared. At [137] of the Reasons, the Tribunal said:

… The Tribunal is unpersuaded that the [applicant’s] latest period of imprisonment since October 2018 has resulted in the developed insight and rehabilitative progress claimed. It is when he was at liberty in the community that the [applicant] repeatedly relapsed into drug and alcohol addiction and criminal offending; notwithstanding past rehabilitative opportunities, court-ordered constraints, stable employment, and the steadfast support of his family.

49    Eighth, the Tribunal also observed at [138] of the Reasons that the interests of the applicant’s family members and children did not act to curb his longstanding drug addiction or prevent past reoffending. The Tribunal then concluded at [139] of the Reasons:

The Tribunal considers there is an unacceptably high risk that the [applicant] will reoffend if released, causing further serious harm that should not have to be tolerated by the Australian community. This primary consideration weighs very substantially against revocation.

50    The Tribunal’s reasoning process as identified above demonstrates that the Tribunal properly understood and complied with cl 13.1.2(1) of Direction 79. The Tribunal noted that the applicant’s offending was linked to his drug-taking, and that both his offending and his drug-taking had increased in seriousness over time. The Tribunal noted, consistently with the submissions made by the applicant’s counsel, that the applicant’s drug-taking was linked, in particular, to offences involving violence or the threat of violence. The Tribunal was clearly of the view that the applicant was likely to relapse into drug-taking and further offending if he was released from immigration detention. The Tribunal found the applicant’s past offending was of a nature that gave rise to various types of harm that the Tribunal characterised as “serious”, and the Tribunal concluded that there was an unacceptably high risk that the applicant would reoffend if released, “causing further serious harm”. In order to comply with cl 13.1.2(1) of Direction 79, it was unnecessary for the Tribunal to reach a different conclusion on the risk that the applicant posed to the Australian community by reference to different categories of offending. I am satisfied that it was open to the Tribunal to conclude on the material before it that the applicant presented an unacceptably high risk of causing further serious harm.

51    For the reasons given, ground one must be rejected.

ground two – ALLEGED procedural unfairness

The applicant’s submissions

52    The applicant submits that common law rules of procedural fairness applied to the Tribunal’s decision-making and required broadly that the applicant knew the substance of the case against him and that he be given the opportunity to respond to adverse material that is credible, relevant or significant: Kioa v West (1985) 159 CLR 550 per Brennan J at 629.

53    At [132] of the Reasons, the Tribunal stated:

The Tribunal is concerned about the confluence of two pieces of evidence in this matter relating to the [applicant]’s work as a semi-trailer driver between 2015 and 2017. He told Department of Justice report writers that at the time of his incarceration on 26 April 2016, he was continuing to smoke methylamphetamine and cannabis on a regular basis. The [applicant]’s evidence during the hearing was that he engaged in an ‘extended period’ of drug abuse between his former partner’s death in 2015 and his arrest for the offending against MP in August 2018. The Tribunal is unable to make any findings, but it is nevertheless concerning that a fulltime semi-trailer driver was concurrently engaging in what he described as uninhibited substance and polysubstance abuse.

54    The applicant submits that it should be inferred from that passage that the Tribunal suspected that the applicant had driven his semi-trailer while under the influence of drugs. The applicant submits that it is of no significance that the Tribunal declined to make any specific finding in relation to its suspicion. The applicant submits that it cannot, for instance, be inferred from the lack of any finding that the Tribunal was able to put its “concern” out of its mind altogether. On the contrary, in the applicant’s submission, simply by its inclusion in the Tribunal’s Reasons, the preferable inference is that the “concern”, the subject of the passage at [132], weighed upon the mind of the Tribunal to some degree in reaching its final decision.

55    The applicant submits that nothing about the Tribunal’s “concerns” was put to the applicant before, during or after the hearing, nor did the Minister make any submission that the Tribunal should have regard or give weight to a “concern” of that sort. In these circumstances, the applicant submits that it should be concluded that the denial of an opportunity to respond to the suspicion or “concern” that he had in the past operated a semi-trailer while under the influence of drugs caused the applicant to suffer a practical injustice, especially given the centrality of the applicant’s drug misuse to the case before the Tribunal. In this way, the applicant submits the Tribunal committed jurisdictional error.

The Minister’s submissions

56    The Minister accepts that the Tribunal was required to afford the applicant procedural fairness. However, the Minister submits that procedural fairness did not require the Tribunal to invite the applicant to comment on the “concern” identified at [132] of its Reasons.

57    The Minister submits that the principles relevant to this ground were stated by the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 (WRMF) at [68]-[69] as follows:

The Full Court in SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38]     Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

The Full Court’s statement above indicates that the Agency was entitled to respond to any adverse conclusion drawn on the materials before the Tribunal which is not an obvious and natural evaluation of that material. Put another way, the Agency was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw: Degning v Minister for Home Affairs (2019) 270 FCR 451 at [12] (Allsop CJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32].

58    The Minister submits that the above statement from WRMF accurately summarises the circumstances in which an administrative decision-maker subject to common law obligations of procedural fairness will be required to put a person on notice of issues or adverse conclusions.

59    The Minister submits that the matter about which the Tribunal expressed concern at [132] of its Reasons was not a matter that the Tribunal was required to bring to the attention of the applicant. That was because, in the Minister’s submission, in expressing that concern, the Tribunal relied on material that was known to the applicant, it was based on what the applicant told DOJ report writers, as recorded in the second DOJ report, and on the applicant’s own evidence at the hearing. The Minister submits that it was an obvious and natural evaluation of those two pieces of evidence for the Tribunal to have some concern about the applicant’s use of ice “on a regular basis” during a period when he was working as a semi-trailer driver.

60    In any event, the Minister submits that the “concern” was not one of the “critical issues or factors” on which the decision was likely to “turn”. The Minister submits that the Tribunal expressly noted that it was “unable to make any findings about the issue”, and did not make any further reference to its concern in its Reasons.

Consideration of Ground two

61    It should be accepted that the correct statement of principle is that set out by the Full Court at [68]-[69] of WRMF (set out above).

62    Having regard to that principle, this ground must be rejected for the reasons advanced by the Minister in the Minister’s submissions.

63    Consistent with the statement of principle referred to in WRMF at [68] and [69] (referred to above), the “concern” the Tribunal expressed at [132] of its Reasons was not a matter that the Tribunal was required to bring to the attention of the applicant. The “concern” expressed by the Tribunal was not critical to the issues or factors on which the decision of the Tribunal was likely to turn. The Tribunal expressly noted in [132] that it was unable to make any findings about the issue and did not make any further reference to its concerns in its Reasons.

64    In addition, the statements at [132] of the Reasons were “an obvious and natural evaluation”: WRMF at [69]. I accept the Minister’s submission that, in expressing the “concern”, the Tribunal relied upon material that was known to the applicant, which was based on what the applicant had told the DOJ report writers and was recorded in the second DOJ report, and on the applicant’s own evidence at the hearing. I accept that it was an obvious and natural evaluation of the relevant two pieces of evidence referred to in [132] of the Reasons for the Tribunal to have some concern about the applicant’s use of ice “on a regular basis” during the period when he was working as a semi-trailer driver.

65    In this respect, relevant material was referred to at [119] of the Reasons:

The Tribunal has considered two letters from the Operations Manager at FTW Group dated 1 May 2019, and a more recent letter dated 13 November 2020 from the current Operations Manager, Ms Jessica Boschetti, who was called to as a witness. The first letter stated the [applicant] commenced work with FTW Group in 1 May 2015 and performed well as an employee. Reference is made to a full-time position being available for the [applicant] upon release. No reference is made to the [applicant]’s past offending, drug addiction, or licence suspension. Ms Boschetti’s letter stated the [applicant] was a ‘Semi Truck Driver’ until ceasing employment on 22 November 2017 and was a ‘hardworking, determined and enthusiastic part of the team.’ The letter offers him a ‘FULL-TIME position…available for commencement ASAP.’ Again, no mention is made of the [applicant]’s drug use, criminal offending, or licence suspension. This includes crimes committed in 2018 after he ceased work with FTW Group, such as drug and weapon possession offences, Reckless conduct endanger life, Fail to stop vehicle after an accident, Drive whilst disqualified, and Fail to render assistance after accident. On the [applicant]’s own evidence, he is currently ineligible to work as a truck driver because his licence remains suspended. There is no evidence to corroborate the extent of any licence suspension.

66    These letters, from the applicant’s former employer, for whom he had driven semi-trailers, explained in summary that the applicant had worked as a semi-trailer worker in the period from May 2015 through to November 2017. There was also material before the Tribunal which showed that, “at the time of his incarceration on 26 April 2016, [the applicant] was continuing to smoke methylamphetamine and cannabis on a regular basis”, and the applicant’s “evidence during the hearing was that he engaged in an ‘extended period’ of drug abuse between his former partner’s death in 2015 and his arrest for the offending against MP in August 2018”: Reasons, [132].

67    In addition, the violent conduct of the applicant recorded in the Tribunal’s Reasons included at least two instances of the applicant driving violently and dangerously: see Reasons, [35] and [37] (referred to above). It would appear that, in relation to at least one of those instances, the applicant was drug-affected.

68    In light of this evidence, it was obvious and natural for the Tribunal to be concerned about the fact that, during the period when the applicant was employed to drive semi-trailers, he was regularly using illicit substances. It is well-known that illicit substances of this kind can impair a person’s ability to drive vehicles and, of course, if a person loses control of a heavy vehicle like a semi-trailer, the potential for significant harm is obvious.

69    For these reasons, ground two must be rejected.

disposition

70    For the reasons given above, the application for judicial review will be dismissed with costs.

Associate:

Dated:    8 July 2021