Federal Court of Australia

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1134

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 November 2020, in which the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse to grant the applicant a Partner (Temporary) (Class UK) visa, doing so on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).

2    For the reasons I explain it is appropriate to dismiss the application.

THE FACTS AND PROCEDURAL BACKGROUND

3    The applicant is a 33 year old citizen of Egypt. He arrived in Australia in April 2007 on a student visa. He studied an English course for six weeks and then attended TAFE for about six months. He married in 2009 and became divorced in 2011.

4    In November 2011 he obtained a taxi licence and he drove a taxi in and around South Hedland, Western Australia until 2014. He remarried in April 2012. In 2014 and up to February 2015 he worked as a general labourer in Port Hedland.

5    On 10 April 2013 he applied for a Partner visa on the basis that he was married to an Australian citizen. On 4 November 2014 a delegate of the Minister refused that application on the basis that the delegate was not satisfied that the marriage was genuine. Following that refusal the applicant sought review by the Tribunal, which ultimately set aside the refusal and found that the applicant was in a genuine spousal relationship. The Tribunal remitted the matter to the Department of Immigration and Border Protection (Department) for determination of the remaining considerations. In the meantime the Department turned to consider the applicant’s history of criminal conduct.

The applicant’s history of criminal offending

6    The material before the Court shows that the applicant has been convicted of the following criminal offences:

(a)    on 5 August 2009 he was found guilty of driving with no authority to drive for which he was fined $300 and his license was suspended for three months;

(b)    on 28 November 2013 he was found guilty of creating a false belief for which he was fined $750;

(c)    on 24 February 2014 he was found guilty of unlawful assault occasioning bodily harm with circumstances of aggravation, for which he was sentenced to a six-month intensive supervision order concurrent from 24 February 2014. That was an offence of domestic violence on his then wife;

(d)    on 6 August 2014 he was found guilty of possessing a prohibited drug (cannabis) for which he was fined $250;

(e)    on 11 August 2014 he was found guilty of possessing a prohibited drug (cannabis) for which he was fined $400;

(f)    on 25 August 2014 he was found guilty of an assault on another woman with whom he was in a relationship, and breaching the intensive supervision order of 24 February 2014, for which he was given a suspended imprisonment order for six months and one day and was fined $500;

(g)    on 12 February 2015 he was found guilty of possessing a prohibited drug (cannabis) for which he was fined $400; and

(h)    on 15 January 2016, in the most serious offence on his record, the applicant was found guilty of possession of prohibited drugs with intent to sell or supply (cannabis) for which he was sentenced to one year and four months imprisonment. He committed that offence on 28 February 2014, just four days after being placed on a six-month intensive supervision order.

The delegate’s decision

7    On 10 August 2017 the Department sent the applicant a Notice of Intention to Consider Refusal of a Visa, doing so on the basis that the applicant does not pass the character test under s 501 of the Act. It is uncontentious that the applicant does not pass that test. As a result of being sentenced to one year and four months imprisonment he has a “substantial criminal record” and does not pass the character test under s 501(6)(a) of the Act with reference to s 501(7)(c).

8    On 9 November 2017 the delegate of the Minister decided to refuse to grant the applicant a Partner visa. It is unnecessary to set out the delegate’s reasons as they have been superseded by the decision of the Tribunal.

THE TRIBUNAL DECISIONS

The first Tribunal decision

9    On 7 December 2017 the applicant lodged an application for review with the Tribunal. The application was heard by the Tribunal on 20 February 2018. On 26 February 2018 the Tribunal decided to affirm the delegate’s decision not to grant the applicant the visa.

10    It is unnecessary to set out the Tribunal’s reasons in respect to that decision because, by orders of the Full Court made 30 August 2019, the decision was quashed and the application was remitted to the Tribunal for determination according to law: see Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 (Logan, Steward and Jackson JJ).

The second Tribunal decision

11    Upon remittal, the application for review was heard by a differently constituted Tribunal on 27 and 28 October 2020. The Tribunal again decided to affirm the delegate’s decision to refuse to grant the applicant a Partner visa, and on 6 November 2020 it published its reasons for decision. This decision is the subject of the present application.

12    The Tribunal set out the applicant’s evidence in relation to some of his criminal convictions and made findings in relation to the applicant’s account about his offending conduct, which included the following.

Creating a false belief - 2013

13    The Tribunal noted (at [17]) that in 2013 the applicant was convicted of two charges of creating a false belief and was fined $750. Before the Tribunal, the applicant admitted that he made a statement to the police falsely accusing a former friend of stealing money from him. However, he also said that his former friend was taking some money from him but not all of the large amount he had claimed. In cross examination the applicant was taken to a passage of transcript from the previous Tribunal hearing where he denied telling the police that any money had been stolen from him and that he only pleaded guilty to save time. The Tribunal did not accept that his former friend did, in fact, steal some money from him.

Aggravated assault (domestic violence) - 2014

14    The Tribunal noted (at [19] and [22]) that on 14 February 2014 the applicant was charged with two charges of aggravated assault occasioning bodily harm, committed against his then wife. He pleaded guilty on 24 February 2014 and was sentenced to an intensive supervision order for six months. The Western Australian Police summary of the offence stated, as follows:

The accused and the victim have an 18 month old son who was not at home and they argued about his whereabouts.

The accused and victim left the house for an address in South Hedland from where the child was collected. The victim had the child on her lap in the front passenger seat as they travelled home. The argument between the victim and accused continued in the vehicle.

The accused, while driving, used his left clenched fist to punch the victim in the face multiple times. He drove into the car park… where the victim stepped out of the vehicle with her child.

The accused stepped out of the vehicle and told the victim to put the child back in the car. The victim placed the child back in the car and she was then pushed to the ground to the accused.

The victim got back up to her feet and the accused began to hit her. She ran away screaming for help and police were contacted by a witness to the incident. The accused left the area with the child.

Police attended and conveyed the victim to the South Hedland health campus for treatment to her injuries.

At about 9:45 PM on Friday, 14 February 2014, police attended… And located the accused.

He was arrested and conveyed to South Hedland police station where he participated in a [sic] electronic record of interview during which he made no admissions.

The present charge was preferred and he was released to Bail with protective conditions imposed.

As a result of the assault, the victim suffered swelling and bruising around her right eye, a scratch on her arm, a sore head and torn clothing.

15    The Tribunal set out the applicant’s evidence in relation to that assault (at [20] and [21]), as follows:

20.    The applicant in his oral evidence said that it was a once off incident and that there was no other violence in their relationship. He said that he did slap her a few times and that she went to the hospital with bruises but that they were not life threatening. He said that he regretted what he did and that there was no reason to hit her or any woman or anybody. He said that the reason for it was because his wife had left their child with persons who were not of good character. He said that his wife accepted him back into the house 24-hours after the incident and everything was back to normal and that they continued their relationship and that she provided him with a letter of support at the court hearing.

21.    In cross examination, the applicant said he got angry and hit her but that she was hitting him very hard and that she is strong and bigger than him. He said that when he went home, four friends of hers came to attack him. He said that if he had a good lawyer, he would not have pleaded guilty. He said that he did assault her but not to the point of causing harm and that her injuries were not life threatening. He said that what he did was wrong and that he regrets hitting his ex-wife.

16    The Tribunal did not accept the applicant’s account. It said the following (at [32]):

The applicant committed a violent crime against his wife. He repeatedly hit her to the face and pushed her to the ground. He said that he was angry, but his conduct was clearly deliberate and premeditated given that he asked his wife to put their 18-month year old child in the car. He then continued the assault outside of the car and she ran away screaming for help. The injuries were serious enough so as to require medical attention although I accept that they were not life threatening. The court imposed an intensive supervision order rather than a term of imprisonment, but I note the principle that crimes of a violent nature against women are viewed very seriously regardless of the sentence imposed. I view this act of domestic violence very seriously. It also concerns me that the applicant sought to downplay the seriousness of this offending in his oral evidence by saying that she was hitting him very hard and that she is very strong and is bigger than him.

Possession of prohibited drugs with intent to sell or supply (cannabis) - 2014

17    The Tribunal noted (at [23] and [24]) that on 28 February 2014 the applicant and his co-accused were pulled over by the police while driving, and were searched. The police found 44 small bags of cannabis weighing approximately 1.2 kg in total in the vehicle, as well as digital scales. The applicant and his co-accused were charged with possession of prohibited drugs with intent to sell or supply (cannabis). The applicant pleaded guilty to possessing the cannabis but denied any intention to sell. After a short contested hearing, the applicant was found guilty as charged. On 15 January 2016 he was convicted and sentenced to a term of imprisonment for one year and four months.

18    Before the Tribunal the applicant maintained that he had no intent to sell drugs, and that the judge only believed what he wanted to hear.

19    Again, the Tribunal did not accept the applicant’s account in relation to his offending conduct. It said (at [33]):

I view very seriously the offence of possession with intent to sell or supply (cannabis). I note that the applicant has never accepted that he had an intent to sell or supply cannabis, and he maintained that position at the hearing before me. This concerns me because the sentencing judge made it clear in his remarks that the applicant was knowingly involved with the co-accused in the sale and distribution of cannabis and that he and his co-accused had those drugs as part of a joint criminal enterprise to sell the drugs commercially. This ongoing denial shows a disrespect for judicial authority and a lack of insight and understanding of his offending. It also suggests that any remorse expressed with respect to this offending is not genuine. Whilst it is clear from all of the evidence that the applicant was a habitual user of cannabis (having been convicted four times for possession), it is also clear that the applicant took the more serious step of entering into a commercial enterprise to sell and distribute cannabis.

20    The Tribunal also said (at [34]):

Despite receiving an intensive supervision order on 24 February 2014 for the domestic violence offence, the applicant escalated his offending by entering into the commercial enterprise to sell cannabis. I consider that there is an increasing trend of seriousness from traffic offences, the creating false belief offence, then domestic violence and drug supply which culminated in the term of imprisonment commencing on 27 October 2015.

21    Then, in five paragraphs which are central in the application before the Court, the Tribunal said the following (at [36]-[40]):

36.    I accept that the applicant has participated in numerous rehabilitative programs, in particular in 2019 and early 2020, as evidenced by numerous certificates of participation in courses covering topics of life skills, men’s group, parenting, conflict resolution, anger management and drugs and alcohol. Prior to 2019 the applicant participated in eight weekly Men's Group counselling sessions in the Yongah Hill detention centre which were predominantly focussed on drugs and alcohol. I take into account that the applicant has a record of good behaviour whilst in prison and in detention. I also take into account numerous letters of support from work colleagues, family friends and a senior drug and alcohol counsellor. However, despite the applicant’s good behaviour and participation in rehabilitative courses, he failed to show genuine remorse or insight at the hearing. While he expressed remorse for his offending, he simultaneously sought to minimise the seriousness of the domestic violence and the drug supply during his evidence at the hearing. The applicant maintained his denial of having an intent to sell or supply cannabis, and he sought to justify his domestic violence by saying that his wife was hitting him and that she was a strong and big woman. At times in his evidence, he blamed others such as his co-accused or his lawyer.

37.    I consider that the applicant lacks the appropriate insight into the seriousness of his offending and that, as a result, he is not fully rehabilitated. The applicant’s criminal history demonstrates that he has had very little regard for the law. His claimed rehabilitation has not been tested in the community. Whilst he used to have the support of his wife, it would appear that she no longer supports him because they have divorced, and she no longer visits him. I find that there is a real and unacceptable risk that he will reoffend.

38.    I have taken into account the written report and oral evidence from the clinical psychologist, Dr Pattni. She refers to the love that the applicant has for his two children and the time spent in prison and detention as being factors in favour of him not reoffending. She refers to the volunteer courses that he participated in including drug and alcohol, fathering, stress and anxiety management. She expressed her conclusion in respect to rehabilitation and recidivism by saying that ‘evidence based research mentioned above gives support the probability that Mr Kahlil is in a cohort group that stands an enhanced chance of positive rehabilitation.’ She said in her oral evidence that if released he would need support and that his rehabilitation would continue. When asked, she could not say that he is fully rehabilitated now but it was her view that he would fully rehabilitate because of the significant motivation supplied by his children. She concluded in her oral evidence that the applicant has a remote chance of reoffending and a good chance of rehabilitating.

39.    I am unable to accept Dr Pattni’s opinion that the applicant only has a remote chance of reoffending. I remain very concerned by the seriousness of his offending and his oral evidence at the hearing as stated above.

40.    Given the very serious nature of the applicant’s offending and the very real and unacceptable risk of the applicant further offending, I consider that the protection of the Australian community weighs heavily in favour of my exercising a discretion to refuse the applicant a visa.

THE APPLICATION FOR JUDICIAL REVIEW

22    By an amended originating application dated 29 April 2021, the applicant raises the following single ground of review:

The Second Respondent’s (Tribunal) decision to affirm the delegate’s refusal under s 501(1) of the Migration Act 1958 (Cth) is vitiated by a constructive failure to exercise jurisdiction in its rejection at AB 627 [39] of Dr Pattni’s expert evidence directed to likelihood of re-offending by reasoning, in totality, that the Tribunal was “very concerned by the seriousness of [the applicant’s] offending and [the applicant’s] oral evidence at the hearing…”

(a)    The reasoning at [39] exposes a failure to engage with [a] substantially, clearly articulated point based on established facts or a denial of procedural fairness.

(b)    The reasoning at [39] exposes a lack of any intelligible justification or illogicality.

The applicant’s submissions

23    The applicant summarised the Tribunal’s reasons as follows:

(a)    the Tribunal purported to make a finding that the applicant is not “fully rehabilitated” because he “lacks the appropriate insight into the seriousness of his offending” (at [37]). The Tribunal pointed to the applicant’s criminal history and concluded that “he has had very little regard for the law”, and then pointed out that his claimed rehabilitation had not been tested in the community, and that his wife had now parted company with him. These observations culminated in the Tribunal finding that there is an unacceptable risk that the applicant will re-offend;

(b)    the Tribunal said that it took into account the report and oral evidence of Dr Pattni, and set out her conclusion that “evidence-based research mentioned above gives support [to] the probability that Mr Khalil is in a cohort group that stands an enhanced chance of positive rehabilitation”, and that “if released he would need support and…his rehabilitation would continue”. The Tribunal noted that Dr Pattni’s opinion was informed by the applicant’s love for his two children and the time he had spent in prison and immigration detention as being factors in favour of him not reoffending (at [38]). This culminated in the Tribunal noting Dr Pattni’s oral evidence that the applicant “has a remote chance of reoffending and a good chance of rehabilitating”; and

(c)    the Tribunal set out its finding that it was “unable to accept Dr Pattni’s opinion that the applicant only has a remote chance of reoffending” and “remain[ed] very concerned by the seriousness of his offending and his oral evidence at the hearing” (at [39]).

24    The applicant questioned what the Tribunal meant in stating that the applicant lacked “appropriate insight” and submitted that it was unclear how that undermined the expert evidence that he had a low risk of reoffending. He submitted that while a decision-maker need not accept expert evidence, its reasons for rejecting the evidence must be logical. That is, the reasons must impugn the expert evidence by challenging the methodology applied, or else by rejecting a factual premise upon which a conclusion is based.

25    The applicant said that the case involved a short point; being whether an expert opinion received into evidence can be rejected without impugning the expert’s credibility, methodology or the facts upon which it is based. He submitted that the Tribunal’s conclusion at [39], read together with [37], relies on the false proposition that the applicant’s lack of “insight” provides a logical basis upon which to determine that he is not fully rehabilitated and does not have a remote chance of reoffending, as the expert opinion provided. On the applicant’s argument, “insight” is not a concept that appears anywhere in Dr Pattni’s evidence, or elsewhere in the evidence before the Tribunal; and it was deployed by the Tribunal without any foundation in the evidence.

26    The applicant said the Tribunal reasoned that the applicant’s minimising of the seriousness of his prior offending conduct demonstrated an absence of “appropriate insight” and this somehow impugned the expert opinion that the applicant had a remote chance of offending and a good chance of rehabilitating. He said that in so reasoning, without having an appropriate foundation in some bona fide body of knowledge, the Tribunal slid into pop psychology. He asked: What does “insight” mean? What is its content? What are its consequences? In particular, accepting that the applicant minimised the seriousness of his offending conduct, precisely how does that make it more likely or less likely that he would reoffend? It cannot be fear of consequences, as he had just served a term of imprisonment. Conversely, does it follow that an offender who admits wrongdoing is less likely to reoffend?

27    In support of this contention the applicant said that in a different context it is established that a tribunal of fact should generally accept expert opinions which are not impugned as dishonest or incompetent and are unchallenged. He cited the Full Court decision in Taylor v The Queen (1978) 45 FLR 343 at 352 where Smithers J said in the context of a criminal appeal against conviction that expert evidence should be accepted unless the opinion is based on factual premises which:

…are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed.

The plurality (Connor and Frankie JJ) separately said (at 364) that a trier of fact cannot reject unanimous medical evidence unless there is other evidence that can displace or throw doubt on that evidence.

28    The applicant also relied on the decision of the English Court of Criminal Appeal in R v Matheson [1958] 2 All ER 87; 1 WLR 474 (Lord Goddard CJ, Streatfeild, Slade, Donovan and Havers JJ) at 479 which held that:

…if…there is unchallenged evidence that there is an abnormality of mind and consequent substantial impairment of mental responsibility, and no facts or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is unsupported by the evidence.

29    Here, as the applicant contended, the Tribunal did not reject Dr Pattni’s expert opinion on the basis of impugning some factual premise accepted by her, and did not impugn her methodology, nor her credibility. The Tribunal instead adopted its own theories of the mind informed by a concept of “insight” which had no foundation in the evidence. In effect, the Tribunal constituted itself an expert, and it fell into jurisdictional error.

CONSIDERATION

30    The Court thanks Mr Crowley of counsel for appearing on a pro bono basis. He made thoughtful and succinct submissions which were of assistance to the Court.

31    I am not though persuaded that the Tribunal fell into jurisdictional error as alleged.

32    In exercising the discretion to refuse a visa under s 501 of the Act, the Tribunal was bound to comply with Direction No 79 made pursuant to s 499 of the Act, titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79). It required the Tribunal to assess the “risk to the Australian community should the [applicant] commit further offences or engage in other serious conduct”: see para 11.1(1)(b). In making that assessment, the Tribunal was required to have regard to, amongst other things, “the likelihood of the [applicant] engaging in further criminal or other serious conduct” taking into account, amongst other things, “information and evidence from independent and authoritative sources on the likelihood of the [applicant] re-offending” and “evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence” (para 11.1.2(3)(b)(i) and (ii)).

33    It can be accepted that the Tribunal’s decision not to accept Dr Pattni’s opinion that the applicant had only a remote chance of reoffending (at [39]) was informed by the Tribunal’s earlier remarks at [37]. The Tribunal’s reasons must be read as a whole, and the fact that they deal sequentially with the different considerations under Direction 79 does not indicate that the Tribunal decided each factual issue in isolation from the others: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [79] (Perram, Murphy and Lee JJ).

34    I do not though accept that the Tribunal fell into error by not accepting Dr Pattni’s opinion. The Tribunal is the trier of fact and, pursuant to Direction 79, its task was to make its own assessment of the likelihood of the applicant engaging in further criminal or other serious conduct, having regard to the material before it. It could derive assistance from Dr Pattni’s evidence as to the risk of the applicant reoffending, or not, and it was certainly not bound to uncritically accept her opinion: YKSB v Minister for Home Affairs [2020] FCA 476 at [45] (Mortimer J); JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293; 171 ALD 277 at [74] (Perry J).

35    It is true that the Minister did not adduce any medical evidence to contradict Dr Pattni’s opinion, and to that extent her evidence was unchallenged, but that does not mean the Tribunal was required to accept it. As Katzmann J explained in SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; 141 ALD 395 at [79] (approved on appeal in SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 at [24] (Rares, White and Gleeson JJ)):

There is no principle of law that requires a court to accept unchallenged or untested evidence: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 588; JD Heydon, Cross on Evidence (9th ed), [17460]. Where the evidence-in-chief of a witness on a particular subject appears unconvincing, the fact that the witness was not cross-examined “would, or might, be of little importance in deciding whether to accept his evidence”: Bulstrode v Trimble [1970] VR 840 at 848. There is no reason to suppose that these principles do not apply equally to tribunals. The legislative direction that the Tribunal is not bound by the rules of evidence (AAT Act, s 33) says nothing about the sufficiency of the material upon which the parties might rely to satisfy it that the decision under review should be set aside.

36    Nor was there any requirement for the Minister to adduce contrary medical evidence. It was open to the Minister to rely upon other evidence to make out his contention that there was a real and unacceptable, rather than a remote, risk that the applicant would reoffend, as the Minister did.

37    I do not accept that the Tribunal’s rejection of Dr Pattni’s opinion (at [39]), informed by what it said in [37], involved it concluding, without a logical basis, that the applicant was not fully rehabilitated, and does not have only a remote chance of reoffending. On a fair reading of the Tribunal’s reasons, its decision not to accept Dr Pattni’s opinion and to reach that finding was based on a number of matters, not just its view that the applicant lacked insight. The salient matters included that:

(a)    the applicant “sought to downplay the seriousness” of his assault on his then wife (at [32]);

(b)    the applicant never accepted that he was guilty of intending to sell and supply drugs. He took that view notwithstanding his conviction, and that the sentencing judge said that the evidence, particularly the text messages between the applicant and his co-accused, made it clear that the applicant was knowingly involved in the sale and distribution of drugs. He claimed that the sentencing judge “only believed what he wanted to hear” (at [23]). The Tribunal reasoned that these ongoing denials showed a “disrespect for judicial authority and a lack of insight and understanding of his offending” and that the applicant’s expressed remorse in relation to this offence was not genuine (at [33]);

(c)    the applicant showed “a complete disregard for authority by continuing to take drugs and by refusing to accept his guilt as to the supply of those drugs” (at [48]);

(d)    the applicant “failed to show genuine remorse or insight at the hearing. While he expressed remorse for his offending, he simultaneously sought to minimise the seriousness of the domestic violence and the drug supply”. He also sought to justify his assault upon his then wife by saying that his wife was hitting him, and attempted to blame others such as his co-accused in the drug supply conviction, or his lawyer (at [36]);

(e)    the applicant’s criminal history demonstrated that he has “very little regard for the law” (at [37]). The Tribunal observed that the applicant’s offending between 2013 and 2015 was frequent and increased in seriousness over time. It also noted that the applicant’s drug-related offending (including the drug supply conviction) occurred while he was subject to an intensive supervision order for the assault on his then wife (at [22]-[28], [34]);

(f)    the applicant’s claimed rehabilitation had not been tested in the community (at [37]);

(g)    the applicant had lost the support of his former wife, who had divorced him and no longer visited him (at [37]). The Tribunal noted Dr Pattni’s evidence that upon release the applicant “would need support” to continue his rehabilitation (at [38]); and

(h)    the Tribunal observed that the applicant “lacks the appropriate insight into the seriousness of his offending and that, as a result, he is not fully rehabilitated” (at [37]).

38    Having regard to those matters there is no force in the contention that there was no basis in the evidence for the Tribunal not to accept Dr Pattni’s opinion, particularly when counsel for the applicant accepted that the applicant sought to minimise the seriousness of his criminal offending; that his offending escalated over time and became increasingly more serious; that his criminal history demonstrated that he had very little regard to the law; and that there was a basis in the evidence for the Tribunal to conclude that he lacked insight into the seriousness of his offending conduct.

39    On a fair reading, the Tribunal took into account Dr Pattni’s opinion as to the likelihood of the applicant reoffending, but having regard to the various matters set out above, it reached a different conclusion. As I said earlier, the Tribunal may or may not derive assistance from an expert opinion, and its task was to make its own assessment of the risk of recidivism having regard to the evidence before it. Ultimately, whether or not to accept a piece of evidence and the weight to attribute to it is a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (Beach, O’Callaghan and Anastassiou JJ). I do not accept that the Tribunal “constituted itself as an expert”; rather, it assessed the evidence before it and formed a different conclusion as to the risk of the applicant reoffending.

40    Further, provided the Tribunal’s approach to Dr Pattni’s evidence and its assessment of the risk of the applicant reoffending fell within the bounds of rationality, logic and/or legal unreasonableness, no jurisdictional error is established. As the Full Court explained in Sabharwal at [45]:

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

41    I am not persuaded that it was irrational, illogical or legally unreasonable for the Tribunal to reject Dr Pattni’s opinion that there was only a remote chance of the applicant reoffending, and to instead find that there existed a real and unacceptable risk that he would do so. Reasonable minds may differ as to whether that is the correct or preferable outcome but the Court has no jurisdiction to undertake a merits review. The Tribunal’s reasons provide a rational and intelligible justification for those findings, and it is a conclusion which a reasonable decision-maker could reach on the evidence.

42    Nor am I persuaded that the Tribunal failed to engage with a substantially, clearly articulated point based on established facts. First, it is inappropriate to describe Dr Pattni’s evidence as an established fact. It is an expert opinion, which the Tribunal was obliged to weigh against the other evidence before it. Second, the Tribunal clearly had regard to Dr Pattni’s evidence. It summarised the salient parts of her evidence and expressly referred to her evidence that she could not say that the applicant was fully rehabilitated at that time (at [38]). The Tribunal also referred to Dr Pattni’s evidence that, if allowed back into the community, the applicant would need support (at [38]), having previously noted that the applicant no longer had the support of his former wife (at [37]). On a fair reading, that indicates that the Tribunal engaged in an “active intellectual process” in relation to the content of Dr Pattni’s evidence (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173 at [46] (Griffiths, White and Bromwich JJ)), but having regard to all the evidence it was not persuaded to accept her opinion.

43    Additionally, the applicant contended that he was denied procedural fairness, although he gave this contention little or no attention in submissions. The gist of the contention appears to be that the Tribunal came up with the idea that the applicant lacked insight into the seriousness of his offending, which idea was not founded in the evidence; and that the applicant had no notice that the Tribunal might not accept Dr Pattni’s evidence on the basis of that view. I do not accept that. The materials before the Tribunal are replete with examples where the applicant made representations to the effect that he had come to understand the seriousness of his criminal conduct (or in other words, that he had insight into that conduct), that he was remorseful, and that he had been rehabilitated. For example:

(a)    in a letter to the Department dated 13 December 2016, he described himself as not being dangerous to the community because he had been rehabilitated and knew the difference between “wrong and good”;

(b)    in a response to the Notice of Intention to Consider Refusal of a Visa dated 28 August 2017, he said that he was remorseful for his actions and would never reoffend; and

(c)    in a statutory declaration dated 8 February 2018, he said: “I understand that my criminal behaviour and actions are wrong. I am so ashamed of my behaviour. Now, however, I am clean and sober. I am committed to rebuilding my life and becoming a good father to my sons and a good example to the community. Please give me this chance.”

44    Further, the first Tribunal decision (later set aside by the Full Court) made findings which expressly referred to his lack of understanding in relation to the consequences of his actions (at [48]-[49]), as follows:

What emerges from these discrepancies and his evidence at the hearing, is that the Applicant has failed to accept any responsibility for his actions and is prepared to fabricate and conceal the truth. The repeated theme is that the evidence has been fabricated, that he was given bad legal advice each time he pleaded guilty and that he is not being given a fair go and has been denied justice because he is not an Australian citizen…

…It is…indicative of the attitude of the Applicant and his seeming inability to understand the consequences of his actions and accept liability for them.

45    It cannot reasonably be said that the applicant was not on notice that an issue in the application might be whether he understood the seriousness of his criminal conduct and accepted responsibility for it; that is, that he had “appropriate insight” into that conduct

CONCLUSION

46    The applicant did not establish that that the Tribunal fell into jurisdictional error as alleged. It is appropriate to dismiss the application and order the applicant to pay the Minister’s costs.

Associate:

Dated:    21 September 2021