Federal Court of Australia

Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1281

ORDERS

THE COURT ORDERS THAT:

1.    The amended application for review of a migration decision filed 12 August 2020 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

COLLIER J:

Introduction

1    Before the Court is an amended application for review of a migration decision filed by Mr Doves, the applicant, on 12 August 2020. Mr Doves was a visa-holder, whose visa was mandatorily cancelled (cancellation decision) by a delegate of the Minister under the Migration Act 1958 (Cth) (Migration Act), on the basis that Mr Doves did not pass the character test as defined by s 501 of the Migration Act. Mr Doves unsuccessfully sought revocation of the cancellation decision, most recently in proceedings in the Administrative Appeals Tribunal (Tribunal).

2    Mr Doves now seeks relief pursuant to s 476A of the Migration Act, including that the decision of the Tribunal be quashed. The applicant relies on one ground, to which I will turn shortly.

3    At the hearing on 8 October 2020, I ordered, inter alia:

1.     The Minister is to inform the Chambers of Justice Collier and the applicant in these proceedings of the outcome of the application for special leave to appeal to the High Court of Australia from the decision of the Full Court of the Federal Court of Australia in PQSM v Minister for Home Affairs [2020] FCFCA 125 (application for special leave).

2.     These proceedings will stand adjourned pending the outcome of the application for special leave.

3.     In the event that the application for special leave is refused by the High Court, the decision in these proceedings will stand reserved as at the date the Minister complies with paragraph 1 of these Orders.

4    On 12 February 2021, the High Court refused the application for special leave to appeal. My Chambers was subsequently contacted by the respondent’s solicitors on 15 February 2021 in compliance with Order 3. Judgment stood reserved from 15 February 2021.

Background facts

5    The Tribunal member helpfully described relevant key facts, and as these facts are uncontroversial I will extrapolate a summary from the Tribunal decision.

6    Mr Doves is a citizen of the Netherlands who first arrived in Australia on 7 December 1999. Most recently he was granted a Class BB Subclass 155 (five year Resident Return) visa.

7    Mr Doves has a lengthy criminal history in Australia, commencing 5 January 2006. His convictions have been in respect of, inter alia, wilful damage, trespass, assaults occasioning bodily harm, public nuisance, consumption of liquor on a road, failure to appear in accordance with an undertaking, failure to comply with noise abatement direction, breaches of probation orders, common assault, drunk and disorderly, failure to comply with requirement to stop private vehicle, dangerous operation of a vehicle, and enter premises with intent to commit indictable offence. His latest period of incarceration commenced on 22 February 2019 upon his sentencing to a head custodial term of imprisonment of 18 months.

8    On 24 July 2019 the Minister mandatorily cancelled Mr Doves’ visa pursuant to s 501(3A) of the Migration Act on the basis that he did not pass the character test.

9    On 16 August 2019, Mr Doves sought revocation of the decision to mandatorily cancel his visa. In particular, s 501CA(4) of the Migration 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.

10    On 6 December 2019, a delegate of the Minister decided pursuant to s 501CA(4) of the Migration Act not to revoke the cancellation of the visa.

11    Mr Doves lodged an application with the Tribunal on 13 December 2019 seeking review of the Minister’s decision of 6 December 2019. The Tribunal heard the application on 24 February 2020.

Tribunal Decision

12    The Tribunal referred to the decision of the Full Court in Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 and at [10] observed that there were two issues before the Tribunal, namely:

    whether the applicant passed the character test; and

    whether there was another reason why the decision to cancel the applicant’s visa should be revoked.

13    The Tribunal observed at [11] that if the applicant succeeded on either ground, the weight of authority indicated that the Tribunal must find that the cancellation of the applicant’s visa must be revoked.

14    In relation to the character test, the Tribunal referred to the definition in s 501(6) of the Migration Act. After considering Mr Doves’ criminal history, the Tribunal was satisfied that, due to the operational effect of ss 501(6)(a) and 501(7)(c), the applicant did not pass the character test, and could not rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked (at [17]).

15    In relation to another reason why the cancellation of the applicant’s visa should be revoked, the Tribunal observed as follows:

18.    In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

(1)     ...a decision maker:

...

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

19.    The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

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.

20.    Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.

21.    The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

a.    International non-refoulement obligations;

b.    Strength, nature and duration of ties;

c.    Impact on Australian business interests;

d.    Impact on victims;

e.    Extent of impediments if removed.

(Footnotes removed).

16    In relation to Primary Consideration A (namely, protection of the Australian Community) the Tribunal referred to the convictions of the applicant, noting:

29.    As previously mentioned, the material discloses that between January 2006 and February 2019, the Applicant came before the courts for sentencing on approximately 16 occasions and that he was convicted of some 24 offences broadly capable of categorisation as (1) offences against property; (2) offences against the person; (3) public nuisance; (4) failure to comply with a direction from lawful authority; (5) failure to comply with the requirements of a duly issued order compelling him to do/refrain from doing something; (6) drunk and disorderly conduct; and (7) driving/traffic offences.

17    The Tribunal observed that the material also contained details about conduct by Mr Doves warranting the imposition of Domestic Violence Orders made for the protection of the named aggrieved and two children aged under 10 years old (at [30]).

18    The Tribunal observed that Mr Doves gave oral evidence at the hearing, in which he seemed to understand the nature of his offending history, conceded commission of offences and the level of seriousness, and stated that he had done so largely as a result of his unresolved issues with alcohol abuse (at [32]).

19    The Tribunal continued:

34.    When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

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 paragraph (b) above, the sentence imposed by the Court 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.    ...

i.    ...

20    The Tribunal noted that the applicant’s criminal history was redolent of offending that was violent against members of the general community, but specifically women (at [36]). The Tribunal referred to a police narrative which disclosed the applicant’s violent conduct towards a woman, which attracted the application of sub-para (b) of para 13.1.1(1) of Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) (at [39]).

21    The Tribunal was satisfied that the applicant’s repeated offending against lawful authority governing the community was serious – verging on very serious – by reference to sub-para (c) of para 13.1.1(1) of the Direction (at [43]).

22    The Tribunal noted that the applicant’s sentencing history was demonstrative of a consistent and persistent offender known to police, the courts and public venues he attended in his local area. It continued:

46.    … While the sentencing history does not contain multiple instances of the imposition of custodial terms, it nevertheless culminates in the imposition of a significant head custodial term of 18 months for the damage he occasioned to the rival kebab shop business amounting to some $20,000 worth of damage. Having regard to the totality of his sentencing history, I am of the view that this sub-paragraph (d) militates for no other finding than that this Applicant’s offending is, at the very least, of a serious nature, more likely, of a very serious nature

23    At [54] the Tribunal found that both the frequency of the applicant’s offending and its level of severity was such as to attract a finding that his offending had been of a very serious nature.

24    At [69] the Tribunal observed that, having regard to the totality of the evidence to which sub-paras 13.1.1(1)(a)-(g) were relevant, the applicant’s conduct was readily capable of characterisation as “very serious”.

25    At [70] the Tribunal had regard to para 13.1.2(1), which requires a decision-maker to have regard to the risk to the Australian community should the non-citizen engage in further criminal or serious conduct, and the risk of the non-citizen reoffending. In doing so, the Tribunal concluded in summary:

    Having regard to the applicant’s criminal history from 2006-2019, which was demonstrative of repeated failures to follow and accept the reasonable dictates of lawful authority, and the evidence that his consumption of alcohol to consistently excessive levels disorientated his moral compass, had an inability when intoxicated to distinguish between the right and wrong way of acting in certain cases (at [73]-[75]).

    The applicant was not a young man, but despite family responsibilities, business responsibilities, life experience and profile in the community he continued to allow his propensity to abuse alcohol to get the better of him (at [77]).

    It was reasonable to find that the potential consequences flowing from further similar or identical offending by the applicant would be very serious, and potentially catastrophic consequences would flow if he were to reoffend (at [78]).

    Although the applicant claimed that he was a changed man, his offending days were behind him, he would seek treatment for alcohol abuse, and he understood the impact the loss of his visa would have on him, none of this was corroborated by independent expert and clinical evidence of a psychological or psychiatric nature (at [79]). As he had been removed from the mainstream community since February 2019, the likelihood of his propensity to resume abusing alcohol and offending remained untested and unknown (at [86]).

    None of the concessionary sentencing and similarly beneficial sentences imposed on the applicant had caused him to experience any form of deterrent effect upon his propensity to reoffend (at [87]). The inevitable conclusion following application of Principles 6.3(3)-(4) and para 13.1.2(1) of the Direction was that the harm resulting from any return by the applicant to his offending ways could be so serious such that any risk of similar conduct in the future was unacceptable (at [88]).

26    The Tribunal noted that para 13.2(1) of the Direction compelled a decision-maker to make a determination about whether revocation was in the best interests of a child who may be affected by cancellation of the applicant’s visa (Primary Consideration B). The Tribunal observed that the applicant had two biological children in Australia under the age of 18 years, examined the evidence, and concluded at [131]:

I am of the view that the best interests of the Applicant’s two children in Australia does weigh moderately in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a moderate level only and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.

27    In respect of the expectations of the Australian community (Primary Consideration C) the Tribunal noted at [132] that para 13.3(1) of the Direction required that it should consider whether the applicant has breached, or there was an unacceptable risk that he would breach, the trust of the Australian community, having regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction. The Tribunal had regard to factual circumstances relevant to Primary Consideration C, and the evolution of the expectations of the community as reflected in various authorities. In summary, the Tribunal noted:

    The applicant had a work history in Australia.

    The applicant and his wife had operated a fish and chips shop and convenience store business on a successful basis for approximately 15 years.

    The persistent and lengthy offending history of the applicant involved very serious unlawful conduct, and his resulting extensive criminal history breached the expectations of the Australian community (at [144]).

28    The Tribunal continued:

144.    … In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:

(a)     the Applicant has made some positive contributions to the Australian community;

(b)     the Applicant has lived in the mainstream Australian community for approximately 20 years;

(c)     the removal of the Applicant may well have an adverse impact on his two biological children in Australia, aged 14 and 16 years, respectively;

(d)     the very serious nature of the Applicant’s offending to date to other people in the community;

(e)     the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal and property rights of others, and a refusal to follow the rules governing Australian public roads;

(f)     the lack of current, independent and expert evidence (1) identifying the factors giving rise to his propensity to offend, and (2) measuring the level of the Applicant’s insight into the nature and severity of his offending;

(g)     my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and

(h)     my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.

(Footnotes omitted).

29    The Tribunal concluded (at [145]) that these factors, read as a whole in the context of the case, militated in favour of not revoking the cancellation of the applicant’s visa.

30    The Tribunal then turned to Other Considerations, and found:

168.    With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:

•    international non-refoulement obligations: not relevant;

•    strength nature and duration of ties: of moderate weight in favour of revocation;

•    impact on Australian business interests: not relevant;

•    impact on victims: weighs in favour of non-revocation; and

•    extent of impediments if removed: is of neutral weight.

31    The Tribunal concluded:

CONCLUSION

Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

169.    Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

170.    In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

•    Primary Consideration A weighs very heavily in favour of non-revocation;

•    Primary Consideration C weighs heavily in favour of non-revocation;

•    Primary Consideration B weighs moderately in favour of revocation;

•    I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to all of the Other Considerations combined, even when conjoined with Primary Consideration B, outweigh the very significant combined and determinative weight I have attributed to Primary Considerations A and C; and

•    a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

171.    Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

The present application

32    The ground of the application is as follows:

1.    The Second Respondent (Tribunal) made a jurisdictional error by its misapplication or misconstruction of paragraph 13.1.2 of Direction no. 79.

    Particulars

a.    The Tribunal was required by paragraph 13.1(2)(b) of Direction no. 79 to consider the risk to the Australian community should the Applicant reoffend.

b.    The Tribunal was required by paragraph 13.1.2(1) of Direction no. 79 in considering the risk to have regard to, cumulatively, the nature of the harm to the Australian community should the Applicant reoffend and the likelihood of the Applicant reoffending.

c.    The Applicant had a history of committing different types of offences which caused different types of harm.

d.     The Tribunal made general findings about the nature of the harm and the likelihood of the Applicant reoffending.

e.     The Tribunal was required to make specific findings about nature of the harm and the likelihood of the Applicant reoffending with respect to each different type of offence it considered material to the case.

f.     In making general rather than specific findings, the Tribunal erred by failing to complete its statutory task on the basis of a correct understanding of Direction no. 79.

g.     The Tribunal’s error was material as it increased the weight to be given to the first primary consideration which weighed against the outcome sought by the Applicant.

(Emphasis in original).

33    In summary, the applicant submitted:

    The Tribunal failed to carry out its statutory task due to material non-compliance with Direction No. 79, and thereby made a jurisdictional error.

    One of the limbs of the protection consideration is the risk to the Australian community should the applicant reoffend, which is further broken down into a cumulative assessment of the nature of the harm to the Australian community should the applicant reoffend and the likelihood of the applicant reoffending.

    The assessment of risk requires consideration of:

    The Tribunal’s statutory task as set by para 13.1.2(2) of the Direction requires it to make an assessment about risk based on the facts of the particular case, and without resort to generalisations. In this case where the applicant had a significant history of committing different types of offences, the Tribunal would have to determine which types of offence were relevant to the assessment of risk, assess the likelihood of the applicant committing each relevant type of offence, and assess the nature of the harm that would follow from the commission of such an offence. The Tribunal would then be in a position to determine whether the overall risk by an applicant would pose an unacceptable risk of harm to the Australian community.

    In this case however the Tribunal made general findings about the nature of the harm should the applicant reoffend and the likelihood of him reoffending, and in doing so gave no meaningful consideration to the particular circumstances of the applicant’s case or the risk he posed to the Australian community. In particular at [76] of the Tribunal’s decision the Tribunal made a general finding but did not explain how or why the applicant’s reoffending would cause “very significant, and potentially catastrophic physical, financial and psychological harm” to members of the community.

    The Tribunal was required to distinguish between the offences the applicant committed.

    The Tribunal’s approach did not form a proper basis for assessing whether the protection of the Australian community required the applicant to be removed from it. The Tribunal thereby failed to complete its statutory task by its misconstruction or misapplication of para 13.1.2(1) of the Direction, and fell into jurisdictional error.

34    The Minister submitted, in summary, that there was nothing in para 13.1.2 of the Direction which supported the applicant’s argument that a decision-maker is required to engage separate risk assessments for each kind of offending an applicant has undertaken in the past.

Consideration

35    In his application the applicant particularly focused on para 13.1.2 of the Direction, which relevantly provides:

13.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    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).

36    As is plain from para 13.1.2(1), the decision-maker is obliged to have regard cumulatively to the nature of harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen doing so. I accept the submission of the Minister that there is nothing in the text of the paragraph which requires the decision-maker to engage in separate risk assessments for each kind of offending in which an applicant has historically engaged.

37    Further, I am not persuaded that the Tribunal gave no meaningful consideration to the particular circumstances of the applicant’s case or the risk he posed to the Australian community.

38    Turning to the reasoning of the Tribunal, it is plain that the Tribunal carefully examined the particular circumstances of the applicant’s case. The Tribunal had regard to all instances of the applicant’s past offending (commencing at [2] of the reasons), but in particular noted the applicant’s history of reoffending involving alcohol-fuelled violence against both men and women. The Tribunal found, critically, that the applicant’s propensity to abusing alcohol led to his repeated offending of different types, and further that the risk of the applicant reoffending while under the influence of alcohol constituted an unacceptable risk within the meaning of the Direction by reason of the harm it could cause. The Tribunal in particular at paras [79]-[83] found that (including by reference to medical evidence) it was not satisfied that the applicant had rehabilitated, at [83] that the applicant’s offending history demonstrated that he had failed to control the situation, had conceded a predisposition to arbitrarily ceasing medication which removed his craving for alcohol, and at [87] that no sentencing had appeared to deter the applicant in respect of offending. As the Tribunal observed:

87.    … When alcohol has the better of him, serious (often very serious) offending against the personal and property rights of others, coupled with a blatant refusal to respect lawful authority, seem to trump virtually all other aspects of his life.

39    The Tribunal concluded at [88]:

The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.

40    As far as concerns the harm which could be caused, the Tribunal referred, for example, to instances involving alcohol which had resulted in charges against the applicant, including:

    evidence that, after drinking, the applicant had struck unconscious a fellow hotel patron for suggesting that the applicant should consider engaging with Alcoholics Anonymous (at [36]);

    evidence that, after drinking, the applicant had struck a female bar attendant in the forearm and stomach after she had directed the applicant to leave the premises due to his level of intoxication (at [37]); and

    numerous driving offences (including in 2004, 2007 and 2018).

41    In this context, the Tribunal specifically found:

75.    There is little or nothing in the material to suggest the Applicant has overcome his predisposition towards violent resolutions to overcome perceived difficulties. His consumption of alcohol to consistently excessive levels completely disorientates his moral compass such that almost anyone and anything is, to his mind, “fair game”. His conduct when intoxicated causes him an inability to delineate between the wrong and right way of acting towards (1) a member of the opposite sex who may have piqued his interest; (2) a lady earning her living working behind a bar at a licensed hotel venue; (3) another patron at a bar who made a comment about the level of the Applicant’s drinking requiring intervention by alcoholics anonymous; (4) how to drive, manage and control a motor vehicle both for his own safety and that of the public with whom he shares the roads; and (5) police/law enforcement officers who gave him a direction to do or refrain from doing something.

42    At [76]) the Tribunal identified the “potentially catastrophic physical, financial and psychological harm to members of [the Australian] community, particularly to women and unsuspecting people brought into the orbit of his offending”. The Tribunal’s meaning in so finding is crystal clear – death, serious injury, and financial loss of and to members of the Australian community were all possible consequences of re-offending by the applicant, especially in the realm of his wantonly attacking other persons or their property as the applicant had previously done.

43    The Minister submitted that, having found that the applicant’s conduct constituted an unacceptable risk within the meaning of para 6.3(1)(4) of the Direction by reason of the harm it may cause, there was no need for the Tribunal to reflect upon some lesser forms of risk the applicant presented by reason of other offending in which he had previously engaged, and could engage in again (such as a failure to appear in Court in accordance with an undertaking).

44    I agree with the Minister’s submission. I am not persuaded that the Tribunal was required to make a separate finding about the risk of the applicant engaging in each type of offence he had committed in the past.

45    The applicant relied on the decisions of this Court in WAD230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 and Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCAFC 673. In particular, in WAD 230/2014 Gilmour J said:

42.    An examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk which that person poses to the Australian community: see Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [104]. That decision did not involve the Tribunal as it concerned an exercise of the power under s 501(2) by the Minister personally. Justice Mortimer held that the risk of harm to the Australian community is a relevant consideration in the exercise of the power by the Minister: at [88]. In Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 the majority, in obiter, was of the same opinion as her Honour: at [1], [48]-[66].

43.    In Tanielu, her Honour at [89]-[104] considered what is involved in assessing risk of future harm and at [94]-[97] drew assistance from the decision of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 which considered the task in determining an “unacceptable risk” (of re-offending). That court summarised the task in determining an “unacceptable risk” in this way:

[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.

. . .

[124] Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk (emphasis added.)

[125] ... The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable (emphasis added.)

. . .

[130] It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence (emphasis added.)

(Footnotes omitted and emphasis in original).

44.    Her Honour at [97] made the following further observations concerning the approach of the Court of Appeal in Nigro:

[97] At [129]–[130], the Court had observed that the placement of an offence on a continuum is not appropriate, because to do so strives for a greater degree of definition than the subject is capable of yielding, in circumstances where there are inherent difficulties in seeking to categorise sexual offences in terms of their gravity. The introduction of an approach based on “unacceptable risk” was designed to introduce flexibility to the evaluative process, based on considerations particular to the individual offence and offender. It went on (at [130]):

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether the risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

46    More recent decisions of the Full Court, in referring to Tanielu, confirm that the risk of harm to the Australian community is a matter that the decision-maker is required to take into account, because the assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred (namely, protection of the Australian community) (see for example KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 at [58]). There is nothing in the observations of Gilmour J in WAD230/2014, in the quoted comments of Mortimer J in Tanielu, or indeed in other authorities such as KDSP, which support the applicant’s submission that the Tribunal was required to, essentially, take apart the history of offending on the part of the applicant, in order to separately make findings about his likelihood of engaging in each type of offence and the resultant potential risk to the community.

47    The Minister referred me to the judgment of Perry J in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158, in particular at [88]. Plainly, Perry J in DKN20 was not suggesting that the decision-maker had an entirely unfettered discretion to assess risk. Indeed, her Honour at, for example, [88] and [89] of DKN20 specifically had reference to the Direction and the considerations set out therein. The fact that the decision-maker has regard to the Direction is not however inconsistent with the otherwise broad scope of the decision-maker under s 501CA of the Migration Act to assess the seriousness of offending within the boundaries of rationality, and the absence of obligation on the part of the decision-maker to evaluate in any particular way the risk of harm to the Australian community of an applicant reoffending. These observations of her Honour adopted the decision of the Full Court in BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82; [2017] FCAFC 78 (see also Burley J in Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [58]-[63]). I note that an appeal against the decision of Perry J in DKN20 was subsequently dismissed: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97.

Conclusion

48    In my view the reasoning process of the Tribunal was thoughtful, thorough, and correct. Addressing each of the particulars of the ground of the application:

(a)    The Tribunal was required by para 13.1(2)(b) of the Direction to consider the risk to the Australian community should the applicant reoffend, and did so.

(b)    The Tribunal was required by para 13.1.2(1) of the Direction in considering the risk to have regard to, cumulatively, the nature of the harm to the Australian community should the applicant reoffend and the likelihood of the applicant reoffending, and did so.

(c)    The applicant had a history of committing different types of offences which caused different types of harm, however as the Tribunal observed there was a common thread in respect of the factual background of a number of these offences, namely, excessive consumption of alcohol which on the evidence resulted in complete disorientation of the applicant’s moral compass.

(d)    I do not accept that the Tribunal incorrectly made general findings about the nature of the harm and the likelihood of the applicant reoffending – rather the Tribunal made specific findings about the likelihood of the applicant re-offending by way of alcohol-fuelled violence against people and their property.

(e)    I do not accept that the decision-maker is under an obligation to evaluate the risk of harm to the Australian community in the particular way advanced by the applicant. I do not accept that the Tribunal was required to make specific findings about nature of the harm and the likelihood of the applicant reoffending with respect to each different type of offence it considered material to the case.

(f)    The Tribunal properly completed its statutory task.

(g)    In the circumstances, it is not necessary for the Court to consider whether any error by the Tribunal was material such as to constitute jurisdictional error.

49    The application is dismissed.

50    The respondent has sought costs to be fixed in the amount of $7,241. I note that this amount is consistent with that which can be claimed in a Short Form Bill for an application involving a migration decision (Federal Court Rules 2011 (Cth), item 15(2) of sch 3). I consider this is an appropriate matter in which to fix the costs, and that the amount sought is reasonable and appropriate to the nature and complexity of the present matter.

Associate:

Dated:    22 October 2021