FEDERAL COURT OF AUSTRALIA
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The Applicant is to pay the First Respondent’s costs of and incidental to the application, to be agreed or assessed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANASTASSIOU J:
INTRODUCTION
1 On 4 March 2020, the Applicant applied for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to cancel the Applicant's Class BB Subclass 155 Resident Return visa pursuant to s 501(3A) of the Migration Act 1958 (Cth).
2 For the reasons that follow, the application should be dismissed.
BACKGROUND
3 The Applicant was born in 1985 and is a citizen of Iraq. He arrived in Australia on 20 August 2001 at the age of 16, without a valid visa. On 19 December 2005, he was granted a Subclass 866 Protection Visa for five years, which expired on 4 February 2011. On 17 June 2011, the Applicant was granted a Class BB Subclass 155 Resident Return visa, which is the subject of this application.
4 On 15 March 2012, the Applicant was sentenced to a term of imprisonment for two years and 10 months and fixed with a non-parole period of 18 months for the offence of intentionally causing harm. That sentence was suspended and the Applicant entered into bond to be of good behaviour for two years. However, within the period of the good behaviour bond, the Applicant offended again. Accordingly, on 10 October 2014, the Applicant was convicted for the offence of cultivating a commercial quantity of a controlled plant. The conviction arose from the Applicant’s role as a ‘crop-sitter’ for 25 cannabis plants. As a result, the suspension of the Applicant’s earlier sentence was revoked and he was sentenced to a cumulative period of imprisonment of four years and four months, with a non-parole period of two years and three months.
5 Pursuant to s 501(3A) of the Migration Act, the Minister is required to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record: see also s 501(6)(a) of the Migration Act. Relevantly for present purposes, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more and is serving a full-time custodial sentence: see s 501(7)(c) of the Migration Act.
6 On 14 December 2016, the Applicant’s visa was cancelled by the Minister on character grounds pursuant to the mandatory cancellation requirement in s 501(3A) of the Migration Act. On 19 December 2016, the Applicant, through his migration agent, applied to have the cancellation revoked under s 501CA(4) of the Migration Act. That section provides that:
…
(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.
7 On 4 January 2017, the Applicant’s legal representative made representations setting out the Applicant’s personal circumstances and other information in support of his application to revoke the mandatory visa cancellation decision. The Applicant’s claims made in support of the application for revocation were as follows:
(1) he had been offered employment on release from prison;
(2) he has fears for his life if he were returned to Iraq;
(3) he would not be able to find employment in Iraq;
(4) he was assessed for a Violence Prevention Program, and it was determined that he was not violent and not required to do the program; and
(5) he has made a charitable contribution to the Australian community through his volunteer work at an Islamic Centre over eight years.
8 On 24 February 2017, the Minister provided notice to the Applicant of his refusal to revoke the cancellation decision. The Minister noted that even though the Applicant was genuinely remorseful and was taking steps to turn his life around, the community would expect the Applicant not to hold a visa. Accordingly, the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the original decision should be revoked.
9 On 8 March 2017, the Applicant applied to the Tribunal for merits review of the Minister's decision. On 19 May 2017, the Tribunal affirmed the Minister’s decision (the 2017 Tribunal Decision). However, the 2017 Tribunal Decision was quashed by consent in this Court on 12 September 2018 and the matter was remitted to the Tribunal.
10 Before the Tribunal reviewed the remitted cancellation decision, the Applicant applied for an Onshore Protection visa (Class XA, subclass 866) (protection visa) on 13 September 2018. The Tribunal hearing was adjourned to allow the protection visa application to be heard and determined. The protection visa application was refused on 7 January 2019 and the Migration and Refugee Division of the Tribunal affirmed the decision not to grant the Applicant a protection visa on 11 September 2019 (the MRD decision).
11 Before the newly constituted Tribunal, the Applicant relied upon the material provided to the Tribunal for the hearing in 2017. The Applicant also relied on further material, including a statement of the Applicant dated 16 December 2019 (the 16 December 2019 Statement) and a letter from his partner dated 21 March 2019. The Minister similarly provided additional material, including client incident reports relating to a period the Applicant spent in immigration detention, as well as the MRD Decision which affirmed the decision not to grant the Applicant a protection visa.
12 In his statement of facts, issues and contentions dated 16 November 2019, the Applicant relied upon recent country information in support of his contention that the current conditions in Iraq give rise to non-refoulement obligations and a real risk of harm if the Applicant were returned to Iraq. In particular, the Applicant contended at [33] and [34]:
A range of country information has now been provided that establishes that protesters throughout Iraq are subject to being killed, beaten, arrested, tortured, assassinated, silenced, and ‘disappeared’. We contend that as a protester, [the Applicant] will plainly face a real risk of violation of his rights.
Country information also confirms that the instability has created an environment where crime and violence is thriving, and where extremism is on the rise. We therefore contend that even if [the Applicant] was not actively involved in the protests, he still faces a real risk of serious harm if returned to Iraq.
13 The 16 December 2019 Statement, which was provided to the newly constituted Tribunal in support of the application for revocation of the mandatory cancellation decision, is of central relevance to this application. In particular, the 16 December 2019 Statement read as follows.
1. This statement is provided in support of my remitted appeal to the Administrative Appeals Tribunal concerning the cancellation of my visa.
2. I understand that the decision to refuse my Protection visa was recently affirmed by the Administrative Appeals Tribunal. However, the situation in Iraq and in my home city of Basra has continued to deteriorate and so I confirm I still fear that I will face serious harm if I am to be removed to Iraq. I confirm that I wish for my fears of harm to be considered under Australia’s non-refoulement obligations.
3. My home city of Basra is currently facing widespread protests due to the horrible living conditions. The protests are due to the lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities.
4. I completely support these protests and have been keeping up to date by watching the news, watching videos on youtube, and talking to friends and family. My two brothers are actively participating in the protests – my brother is a victim of the lack of opportunities because even though he is well-educated there are no jobs.
5. If I am removed, I will feel compelled to join in on the protests. I am someone who feels very strongly about speaking out about corruption and abuse of power. For instance, while in immigration detention I was an active participant in the hunger strike. Our goal was to draw attention to our view that some of the guards were abusing their power, and also to highlight our concerns regarding our living conditions and lack of rights. These are the same types of issues facing the people of Iraq.
6. As a protester, I know that my life will be at risk as the protests have become extremely violent. Hundreds of people have already been killed and thousands more injured by the Iraqi security forces and militias. I fear that I will be killed, beaten, unlawfully detained, or threatened. For instance, my family’s neighbour’s husband was recently killed while attending a protest. However, I will have no choice because unless things change in Basra, there is no life or future for me or my family.
7. Even if I were not to take part in the protests, my life would still be at risk due to the generalised violence in Basra. Furthermore, the actions of the Iraqi government in violently cracking down on protestors rather than taking steps to fix the issues shows that life in Basra is going to continue to deteriorate to the extent that survival will be very difficult – soon we will have no water, power, or jobs.
[Emphasis added]
14 On 31 January 2020, the newly constituted Tribunal affirmed the Minister's decision in its Decision and Reasons for Decision (Decision Record), to which I will now turn.
Tribunal Decision
15 In its Decision Record, the Tribunal commenced by setting out the background matters I have summarised above and explaining the basis for the Applicant’s visa being cancelled (at [2]-[8]).
16 The Tribunal then noted that the Applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act. By this power, the Minister, or his delegate, must cancel a visa granted to a person if the person does not satisfy the character test. As I have explained above, a person is deemed not to satisfy the character test if the Minister is satisfied that the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment on a full-time basis in a custodial institution (ss 501(3A)(a)-(b)). Relevantly, a ‘substantial criminal record’ includes a sentence of 12 months or more (ss 501(6)(a), (7)(c)). Having been sentenced to a term of imprisonment of more than 12 months, the Applicant did not satisfy the character test.
17 The sole issue before the Tribunal was thus to determine whether there was another reason why the cancellation decision should be revoked. In this context, s 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must revoke the decision.
18 At [18] of the Decision Record, the Tribunal also referred to Ministerial Direction 79:
“The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
• Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
• The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
• A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
• Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
• The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
19 The Tribunal then considered, in detail, the primary considerations and other considerations set out in Part C of Direction 79, under the following sub-headings in the Decision Record (at [19]-[63]):
(1) Primary considerations:
(a) Protection of the Australian community
(b) The best interests of minor children in Australia
(c) Expectations of the Australian community
(2) Other considerations:
(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
20 Having evaluated the Primary Considerations and Other Considerations in Direction 79, the Tribunal affirmed the Minister’s decision, stating in the Decision Record:
Conclusion as to whether there is another reason to revoke the original decision
64. I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
65. The primary considerations relating to the protection of the Australian community and the expectations of the Australian community are overwhelmingly in favour of not revoking the cancellation decision. The offending was frequent and serious involving violence and drugs amongst other less serious offences.
…
67. This is a case where the risk of future harm from the applicant is unacceptable because of the serious and frequent nature of the crimes committed.
68. I note that primary considerations should generally be given greater weight than the other considerations. I consider that the primary considerations of the protection and the expectations of the Australian community outweigh the countervailing considerations.
69. The applicant will be at risk of harm if returned to Iraq but the Australian community will face an unacceptable risk of further harm if the applicant remains in Australia…
…
71. It follows from the application of the guiding principles in paragraph 6.3 of Direction 79 that I am not satisfied that there is another reason why the cancellation decision should be revoked.
APPLICATION FOR JUDICIAL REVIEW
21 On 4 March 2020, the Applicant filed an Originating Application for Review of a Migration Decision in this Court. That application was amended following the appointment of pro bono counsel, and on 3 August 2020, an Amended Originating Application was filed which set out two grounds :
Grounds of application
1. The Second Respondent (Tribunal) erred by failing to engage in an active intellectual process with respect to significant and clearly expressed representations by the applicant and his representative as to whether there is another reason to revoke the cancellation decision [Ground One].
Particulars
a. The Tribunal’s statutory task under s 501CA(4) of the Migration Act 1958 (Cth) requires active engagement with the precise matters advanced by the applicant on the likelihood of harm should he be returned to Iraq.
b. The applicant’s claims included fearing a risk of harm in Iraq due to the lack of safe drinking water, acute electricity shortages, government corruption and the lack of employment opportunities (AB 603, [46]).
c. The Tribunal’s reasons reveal no active engagement with the risks arising from the lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities.
d. Despite its acceptance that there was a real risk the applicant would suffer serious harm in Iraq, there was no active intellectual engagement with, or genuine evaluation of, the applicant’s circumstances, including the nature of the harm.
e. The lack of engagement with the totality of the representations about the risk of harm in Iraq means the Tribunal cannot have properly weighed that risk of harm against the risk of harm to the community.
2. Further or in the alternative, the Tribunal’s reliance on uncorroborated and untested evidence in forming a view about the applicant’s risk of harm to the community was legally unreasonable [Ground Two].
Particulars
a. The Tribunal adopted the summary of offending set out in a previous hearing about the applicant: AB 589, [11].
b. That summary contained reference to South Australian Police (SAPOL) records, which outline untested and uncharged allegations of criminality.
c. Having regard to the nature and gravity of the positive finding, it is legally unreasonable to form a conclusive view about an unacceptable risk of [sic] to the community on the basis of hearsay evidence that has not been tested or corroborated.
GROUND ONE
22 By Ground One, the Applicant contended that the Tribunal failed to properly consider significant and clearly expressed representations as to whether there was another reason to revoke the cancellation of his visa, pursuant to s 501CA(4)(b)(ii) of the Migration Act. This ground calls for a careful reading of the Tribunal’s Decision Record to determine whether the Tribunal’s reasons manifest active intellectual engagement with matters advanced by the Applicant regarding the likelihood of harm should he be returned to Iraq.
Applicant’s submissions
23 The Applicant advanced four separate, but interrelated, propositions in support of Ground One.
(1) The Tribunal’s statutory task involved ‘weighing up’ the specific circumstances relating to the Applicant. It was required to balance (amongst other things) the protection and expectations of the Australian community against the risk of serious harm to the Applicant in Iraq.
(2) The Tribunal could not perform its statutory function if it did not meaningfully evaluate the nature and probability of the risk of serious harm to the Applicant in Iraq.
(3) The Applicant clearly articulated “important and contentious” representations about the risk of generalised violence and deteriorating living conditions in Iraq.
(4) The Tribunal merely recorded its acceptance of some of these claims but did not actively consider the risk of serious harm faced by the Applicant.
24 In determining whether the Minister was satisfied that there was another reason why the original decision should be revoked, the Applicant submitted, and I accept, that the Tribunal is required to give active intellectual consideration to representations that were clearly made to the Minister by the Applicant: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). Such consideration must involve a genuine qualitative assessment and it is not sufficient that a decision-maker simply says that he or she had regard to a representation: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45] (Rares and Robertson JJ).
25 The Applicant also relied on Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, in which the Full Court of this Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said at [39]:
Giving meaningful consideration to a clearly articulated and substantial or significant representation … requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law…
26 The Full Court’s decision in Omar has been oft cited by this Court, including in the recent decision of Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, in which the Full Court (Burley, Colvin and Jackson JJ) said at [27]:
Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66]‑[68], [73]‑[74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41]‑[45] (Rares and Robertson JJ), [62]‑[63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]‑[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]‑[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]‑[32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]‑[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).
27 The Applicant submitted that the “significant” and “clearly expressed” representations in this matter arise from the Applicant’s 16 December Statement (see especially [3] and [6]-[7] of that statement, extracted above at [13]). Those representations related, on the one hand, to the risk of harm associated with participating in protest activity in Basra, and, on the other hand, to the generalised risk of violence and deteriorating living conditions in Basra due to the lack of safe drinking water, electricity shortages, corruption and a lack of employment opportunities.
28 It was common ground that the risk of harm associated with participating in protests (directly or indirectly) was adequately considered and addressed by the Tribunal. Indeed, the Tribunal focused its attention on the protest activity in Basra and whether it was likely that the Applicant would suffer harm as a consequence of being caught up in the protests or the violent suppression of them (even if he does not participate in them). However, the Applicant submitted that it is apparent from the Decision Record that the Tribunal did not actively consider the Applicant’s representation about the generalised risk of violence and the deteriorating living conditions in Basra.
29 The Applicant further submitted that, fairly read, the Tribunal reached its conclusion about the risk of harm to the Applicant in Basra based on its impression of the dangers associated with protest activity. However, the Applicant claims went beyond this; he does not simply fear ‘violence’ in Iraq, his fears were more substantial, and included concerns for his health and economic wellbeing. The Applicant thus submitted that such fears were clearly articulated in his claims but the Tribunal omitted to consider the representations in any meaningful way.
30 The Applicant specifically referred to a “factually analogous” decision in XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134; 168 ALD 267. In XMBQ, Davies J explained the error of the Tribunal at [11]:
In my view, the Tribunal failed to engage meaningfully with the applicant’s claims as to the risks of harm he would face if returned to Somalia. The Tribunal simply recorded its acceptance that there was a real risk that the applicant would suffer serious harm, without engaging with the representations made on behalf of the applicant about the nature and probability of the risk of harm. There was no factual finding or analysis underpinning the conclusion that the risk of serious harm to the applicant should he be returned to Somalia “could potentially extend to torture or a risk to his life” and no active intellectual engagement with, or genuine evaluation of, the applicant’s circumstances. In order to discharge the statutory task of evaluating the considerations bearing upon the exercise of discretion under s 501CA(4), the Tribunal Member was obliged to give real consideration to the applicant’s representations by bringing his mind to bear upon the facts stated in them and the claims put forward by the applicant on the likelihood of harm he would face if returned to Somalia. …
31 Her Honour went on to conclude that the error was material at [12], noting:
Further, I reject the submission that the error was not material. The Tribunal’s statutory task under s 501CA(4) of the Act required an evaluative process and, had the Tribunal truly engaged in an act of intellectual process with the significant matters put forward by the applicant on the likelihood of harm, there is a realistic possibility that the Tribunal’s decision could have been different if it had given proper and meaningful consideration to the applicant’s claims: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45]‑[50] per Bell, Gageler and Keane JJ.
32 The Applicant submitted that, as in XMBQ, the Tribunal in the present case merely recorded its acceptance and made passing reference to the fact that the Applicant will suffer significant hardship and a general risk of violence if returned to Iraq. Further, the Applicant contended that Tribunal’s reasons do not reveal whether it accepted the country information regarding the killing, beating, torture and loss of liberty suffered by people in the position of the Applicant.
33 Similarly, the Applicant submitted that the Tribunal did not engage with the feared harms – either in terms of severity or likelihood – specifically raised by the Applicant. Rather, the Tribunal simply noted that the Applicant “faces a real risk of harm in the nature of violence due to this deteriorating situation” (at [63] of the Decision Record) before moving on to weigh other factors. The Applicant submitted that was not an active consideration of the Applicant’s claims and did not rise to the level of a meaningful evaluative process “about the nature and probability of the risk of harm”: cf. XMBQ at [12]; see also DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [45] (Bromberg, Mortimer and Snaden JJ), discussed below.
34 In short, the Applicant contended that the Tribunal’s mere recitation of the general risk of violence in Basra and deteriorating living conditions, without any explicit finding of fact about the claim, did not amount to active intellectual engagement with the Applicant’s clearly expressed claim. It follows, according to the Applicant, that in the absence of any genuine evaluation of these matters, it was not possible for the Tribunal to properly weigh those considerations against the risk the Applicant poses to the Australian community. As a result, the Tribunal failed to properly exercise the discretion in s 501CA(4) of the Migration Act.
35 The Applicant contended that this omission was material insofar as the Tribunal’s decision could have been different if it had given proper and meaningful consideration to the Applicant’s claims: see, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ), endorsing the principles in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45]‑[50] (Bell, Gageler and Keane JJ). The substance of the Applicant’s submission in relation to materiality was that if the Tribunal accepted the Applicant’s feared risk of harm, it would have influenced the weighing exercise required in the exercise of s 501CA(4), and therefore, the application should be allowed.
Minister’s submissions
36 The Minister accepted, appropriately, that the Tribunal was required to give active intellectual consideration to “representations” that were clearly made by the Applicant in support of his application for revocation of a cancellation decision pursuant to s 501CA(4) of the Migration Act. However, the Minister qualified this general concession by reference to a number of specific propositions.
37 First, the Minister submitted that “clearly expressed” or “significant” representations must be considered as a whole, rather than by reference to the individual statements contained in the representations: see, eg, Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ). In this respect, the Minister referred to the observations of the Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] (Flick, Griffiths and Moshinsky JJ):
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
[Emphasis added]
38 The Minister also referred to similar observations of the Full Court in EVK18 v Minister for Home Affairs [2020] FCAFC 49; 274 FCR 598 at [14] (Flick, Griffiths and Moshinsky JJ):
…
The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error … whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.
39 Second, the Minister submitted that he is not subject to a “superadded” duty to make findings of fact about every issue or ground raised by a party seeking the revocation of a cancellation decision. The Minister submitted that the Tribunal is only required to make an explicit finding where the claim in question is ‘objectively significant’. In this respect, the Minister referred extensively to the Full Court’s decision in Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611, including at [42], [49] and [50]. In Guclukol, the Full Court (Katzmann, O'Callaghan and Derrington JJ) said at [50]:
There is nothing … which suggests that a finding needs to be made in relation to each submission, argument or claim made by a person who has made representations under s 501CA(3) and it is far from apparent that the decision in Omar sought to depart from it. Indeed, that seems unlikely. The point there articulated was not that there existed any superadded duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they include where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be exercised.
[Emphasis added]
40 Third, the Minister submitted that in determining whether the Tribunal has adequately considered the Applicant’s claim, it is relevant to look at how the claim was put to the relevant tribunal and whether the visa applicant was represented. In this respect, the Minister referred to Basyouni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 119; 169 ALD 298 at [41] (Griffiths J):
… in determining whether or not a decision maker such as the AAT has addressed the case advanced by the review applicant it is relevant to take into account the manner in which the case was presented, which includes the significance of the evidence which is presented but also any submissions which were made to the decision maker which assist in identifying the issues requiring determination (see AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 at [25]-[26] and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18(a)]). Another relevant consideration is whether or not the review applicant was represented…
41 Fourth, the Minister submitted that it is crucial that the Tribunal’s reasons are properly read in context. That is to say, indications by the Tribunal that a matter has been “considered”, “noted”, “accepted”, “recognised” or “had regard to” are not conclusive. Whether there has in fact been a process of active intellectual engagement in any particular case depends on the relevant circumstances and the reasons read as a whole: Guclukol at [67]. Similar observations were made by the Full Court in DQM18 at [45]:
The appellant contends that “noting” a matter may not equate to considering it. As we explain below, the use of that kind of language may or may not be significant, but it is not determinative of lack of consideration. All will depend on the context in which the language is used, and whether on a fair reading it can still be said the decision-maker actively engaged with the issues placed before her or him. The language used might be one indication of lack of active intellectual engagement; another might be whether findings of fact are made. However, the whole of the reasons, read in the context of the representations made and other information available, will need to be taken into account by the reviewing court.
42 Fifth, the Minister submitted that s 501CA confers “a wide decisional freedom” on the decision-maker. Subject to considering any substantial representations made by a person who requests revocation of the cancellation decision, the Tribunal has a broad discretion in determining whether it is satisfied that there is a sufficient reason for revoking a decision: EVK18 at [12]. It follows that although “the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be ‘reviewed’ are limited”: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [42] (Collier, Reeves and Derrington JJ).
43 The Minister conceded that the Applicant made a representation that another reason for revoking the cancellation decision was that, if the Applicant was returned to Iraq, he would face difficult living conditions of the kinds adverted to. The Minister further recognised that this risk was in addition to the risk of being harmed in protests, being protests in relation to the deteriorating living conditions in Iraq.
44 Notwithstanding the Minister’s concessions, the Minister submitted, and I agree, that it is important to keep in mind the link between these two matters (being living conditions in Iraq and feared harm from participation in protests about those living conditions) when considering the Tribunal’s reasons. Such context informs the nature of the representations that were made to the Tribunal and the extent to which the Tribunal is required to make specific or separate findings of fact about those matters.
45 Having regard to the foregoing, the Minister submitted that there was no jurisdictional error disclosed in the Tribunal’s reasoning process. The Minister submitted that the Tribunal effectively accepted each of the representations made by the Applicant, both in relation to the risk of harm arising from protests and as to the underlying issues that the protests were about. However, the Tribunal was not satisfied that these matters constituted another reason for revoking the cancellation decision.
46 As to the materiality, the Minister submitted that there was no realistic possibility of a different outcome given the findings made by the Tribunal, namely, that the Applicant faces a real risk of harm and this weighs in favour of revoking the cancellation decision. However, the Minister acknowledged that it would be remiss to place undue reliance on a submission that the error was not material, especially having regard to what Davies J said in XMBQ at [12].
Supplementary submissions
47 As I have explained above, the Applicant submitted that his representation about the generalised risk of violence and deteriorating living conditions in Basra was an objectively significant or pivotal claim and therefore the Tribunal was required to make an explicit finding about the claim. The Applicant further submitted that these matters were important and contentious such that, in the absence of an express finding about these issues, it was appropriate to infer that they were not genuinely considered by the Tribunal.
48 In response, the Minister submitted that the representations were accepted and, in any event, they were not contentious in the way suggested by the Applicant in relation the present application the subject of judicial review. In this respect, the Minister suggested during the course of the hearing that it might assist the Court to consider the contentions put by the Applicant and the Minister before the Tribunal. I therefore invited the parties to provide submissions regarding the relevance of the contentions before the Tribunal to the present application, leaving open the question of whether I would rely on that evidence. I did so on the basis that it seemed to me that the contentions were objectively relevant to the manner in which the representations in question were put to the Tribunal and, it follows, whether there was any omission or failure by the Tribunal to actively engage with the relevant issues: see, eg, Basyouni at [41] (Griffiths J).
49 As a preliminary matter, I am satisfied that it is appropriate to have regard to the parties’ written contentions before the Tribunal. This is because the parties’ written contentions form part of the material before the Tribunal; in fact, they are referenced and extracted in the Tribunal’s reasons. Accordingly, as a matter of principle, it is both proper and appropriate for the Court to have regard to those contentions in an application for judicial review.
50 In this instance, the Applicant contended by Ground One that the Tribunal failed to give active intellectual consideration to a representation made by the Applicant. It is well established that the way that the case was put in the Tribunal (including in the parties’ contentions) is relevant in deciding whether the Tribunal has discharged the obligation to give active intellectual consideration to a representation made: see, eg, Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525 at [84]-[87] (Wheelahan J).
51 I turn now to the supplementary submissions received from the parties, which in effect sought to characterise the contentions advanced before the Tribunal.
52 The Minister submitted that the Applicant’s claims concerning generalised violence and deteriorating living conditions did not engage Australia’s international non-refoulement obligations, but should be considered in the context of impediments for the Applicant to return to Iraq. The Minister submitted that the Applicant had advanced the same contention before the Tribunal. The Minister accepted that there may be some impediments to the Applicant returning to Iraq due to the lower standard of living and the economic situation, “along with the general security situation facing the Iraqi population as a whole”, and that these considerations favoured revocation of the cancellation decision. However, the Minister submitted to the Tribunal that this consideration should not be given significant weight when balanced against the other considerations, including the primary consideration of protecting the Australian community.
53 In substance, the Minister did not dispute the country information demonstrating the general risk of violence and deteriorating living situation in Basra. Rather, the Minister contended that: (i) as a matter of law, a generalised violence claim did not engage Australia’s non-refoulement obligations; and (ii) the general security situation in Iraq did favour revocation of the cancellation decision, but that consideration was outweighed by other considerations. That position, the Minister submitted, is consistent with the manner the issue was dealt with by the Tribunal.
54 The Minister also submitted that the Applicant’s contentions before the Tribunal were numerous and it is important to consider those contentions as a whole. In particular, the Minister submitted that the claim about generalised violence and deteriorating living conditions was only one of various issues advanced under the rubric of international non-refoulement obligations. Further, it was only one of a number of topics dealt with in the contentions more generally, and many of those contentions had several elements and claims. The Minister submitted that in those circumstances, it was not necessary to make detailed findings about the generalised risk of violence or deteriorating living conditions, beyond those matters which the Tribunal did consider and genuinely evaluate in the Decision Record.
55 The Applicant’s supplementary submissions traversed much of the same ground as the Applicant covered at hearing or in earlier written submissions. However, I note the following additional matters arising from those submissions.
56 First, the Applicant submitted that the issue which was contentious before the Tribunal was whether Australia’s non-refoulement obligations were engaged due to the crime, violence and extremism in Basra. The Applicant submitted that the Minister had misunderstood this position by focusing on the “extent of impediments” if the Applicant was returned to Iraq. The Applicant further submitted that the Minister could not seriously maintain that the matter was not contentious in circumstances where the Minister had previously disputed the claim that the thriving crime, violence and extremism in Basra engaged Australia’s non-refoulement obligations.
57 Second, and relatedly, the Applicant submitted that the Tribunal did not genuinely consider one of the important and contentious matters that he had raised in the 16 December 2019 Statement. In this respect, the Applicant contested the submission that the Tribunal had considered these issues under the heading “extent of impediments if removed to home country” when the issue was rather whether it had actively considered whether Australia’s non-refoulement obligations were engaged by the crime, violence and extremism in Basra.
58 In any event, the Applicant did not accept that the only way for this Court to determine whether a matter was “contentious” is by examining whether it was, in fact, “contested”. Such an approach conflates the two concepts and, as a matter of principle, misunderstands the guidance of the Full Court in Guclukol. Thus, the Applicant submitted that where, as here, one party contests a matter, that necessarily renders it contentious. Further, it was submitted that a matter may be contentious even where one party says nothing about it at all. The Applicant submitted that it would be a perverse outcome if the Minister was able to claim that a matter is not contentious merely because an applicant cannot point to an express rejection of it in written materials that were placed before the Tribunal.
Consideration of Ground One
59 It is important to keep in mind that the detailed submissions set out above ultimately go to the question of whether the Tribunal gave meaningful consideration to a clearly articulated and objectively significant representation. That question is fundamentally informed by analysing the Tribunal’s Decision Record as a whole.
60 The Tribunal extracted the 16 December 2019 Statement at [46] of its Decision Record. It then proceeded to consider the evidence of the deteriorating circumstances in Iraq and concluded:
48. Evidence of the deteriorating circumstances in Iraq is found in the updated advice from the Department of Foreign Affairs and Trade current as at 14 November 2019, which refers to large, violent protests taking place since 1 October 2019 and that security forces have used tear gas, water cannons and live ammunition against protesters. The applicant provided further evidence from journalist reports in November 2019 referring to the spread of violent protests across the country. The protests are expected to continue because the authorities in Iraq are not addressing the issues. It is reported that the Iraqi government has begun growing more authoritarian in response. There is a reference to a peaceful sit-in at Basra being broken up by security forces using live bullets, tear gas and sound bombs against demonstrators.
49. I accept the evidence of the applicant regarding the escalating protests in Basra and his brothers’ participation in those protests, but I note that his brothers have not been injured whilst protesting. The applicant says that he will feel compelled to join in on the protests. The respondent submits that it is the applicant’s choice as to whether he participates in these protests and that Australia’s non-refoulement obligations will not be engaged based on speculation as to what the applicant is likely to do in the future. If the applicant is returned to Basra I consider that the situation has deteriorated to the point that there is a real risk of harm to him even if he does not participate directly in the protests. It appears to me that, given the involvement of his family, it is inevitable that he would be caught up in those protests and the violent suppression of them.
…
53. Given that the legal consequence is that the applicant would be returned to Iraq, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation decision. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including a risk of violence in the event that he were to return to Iraq.
[Emphasis added]
61 Further, at [62]-[63] of the Decision Record, under a heading entitled “Extent of impediments if removed to home country”, the Tribunal stated:
The applicant is 34 years old and generally in good physical health. The applicant’s parents and siblings live in Iraq and would support him if he were to return. No doubt the employment and general economic conditions in Iraq are much worse than in Australia, but the applicant would benefit from having the support of his family some of whom are themselves employed. There are no significant language or cultural barriers. The findings in the MRD decision are relevant in this regard; in particular that the applicant as a member of the Shia population, does not face a real risk of significant harm from extremist groups in Basra on return to Iraq or in the reasonably foreseeable future and that the tribunal found the applicant did not face a real chance of persecution or significant harm for being a failed asylum seeker from a Western country, a returnee who has spent significant time in a Western country or for actual or imputed secular political opinions on account of having spent significant time in a Western country. Nevertheless, it is a relevant factor that the situation in Iraq has deteriorated and that the protests have involved more violence.
As I have already found with respect to non-refoulement obligations, there are significant impediments that would arise if the applicant were returned to Iraq because of the deteriorating situation of violence in Iraq and particularly in Basra. Those matters raised with respect to non-refoulement are also relevant to this factor regarding impediments. The applicant faces a real risk of harm in the nature of violence due to this deteriorating situation. This factor weighs in favour of revoking the cancellation decision.
[Emphasis added]
62 In my view, the Applicant made two significant representations, which the Tribunal was required to, and did in fact, actively consider. Those representations are clearly expressed in both the Applicant’s statement of facts, issues and contentions and the 16 December 2019 Statement. The representations may be summarised as follows:
(1) that the Applicant feared being beaten, arrested, tortured or killed as a result of participating in protest activity or being associated with protest activity in Basra; and
(2) that the Applicant feared harm as a result of generalised violence and deteriorating living conditions in Basra. Those deteriorating living conditions included matters such as the lack of safe drinking water, acute electricity shortages, government corruption and the lack of employment opportunities.
63 It was common ground that the Tribunal adequately dealt with the risk of harm to the Applicant arising out of protest activity in Basra. Accordingly, the only issue that arose for determination under Ground One was whether the Tribunal’s reasons revealed active intellectual engagement with the consequences arising from the generalised risk of violence and deteriorating living conditions in Basra.
64 In my view, fairly read, the Tribunal’s reasons demonstrate active intellectual engagement with the Applicant’s representations. In particular, the Tribunal:
(1) found that, in light of country information, the Iraqi authorities are not addressing the issues about which the protests relate, namely, the deteriorating conditions (at [48]);
(2) accepted the Applicant’s evidence “regarding the escalating protests in Basra and his brothers’ participation in those protests”, which included that his brother was protesting because “even though he is well-educated there are no jobs” (at [49]);
(3) found that “the situation [in Basra] has deteriorated to the point that there is a real risk of harm to [the Applicant] even if he does not participate directly in the protests” (at [49]);
(4) accepted that the Applicant “would face significant hardship” in the event that he were to return to Iraq (at [53]); and
(5) accepted that “employment and general economic conditions in Iraq are much worse than in Australia” and, notwithstanding that the Applicant was refused a protection visa “it is a relevant factor that the situation in Iraq has deteriorated and that the protests have involved more violence” (at [62]).
65 Having accepted the deteriorating situation in Basra, including the limited employment opportunities and other significant hardship, the Tribunal was not required to make detailed findings in relation to the Applicant’s representations in the 16 December 2019 Statement. This conclusion is fortified by the fact that those representations were not regarded by the Tribunal as contentious, having regard to the manner in which such issues were raised before the Tribunal.
66 Further, and in any event, I do not accept the Applicant’s characterisation of the Tribunal’s consideration as involving no more than a “mere recitation” of, or “passing reference” to, the Applicant’s claim. To the contrary, the matters I have summarised above reveal that the Tribunal gave proper, genuine and realistic consideration to the issues before it. The asserted analogy with XMBQ is inapposite.
67 Accordingly, I reject Ground One on the basis that, in my view, the Tribunal did engage in a genuine evaluation and active intellectual consideration of the risks faced by the Applicant if he were returned to Iraq. Those considerations were in turn weighed in the balance by the Tribunal in discharging its statutory function under s 501CA(4) of the Migration Act.
GROUND TWO
68 By Ground Two, the Applicant contended that the Tribunal unreasonably relied upon “untested and uncorroborated hearsay evidence” regarding the risk that the Applicant posed to the Australian community. The evidence being referred to by the Applicant was South Australian Police (SAPOL) records. Those records are not court documents. Rather, they are records of interactions with the SAPOL, the contents of which are compiled by police officers and which have not been challenged or substantiated in court.
69 At [11], the Tribunal adopted a summary of the Applicant’s offending from the 2017 Tribunal Decision. That summary appears under the heading “The matters the subject of convictions”. However, according to the Applicant, that summary was created by reference to matters for which the Applicant was convicted, charged but not convicted, and matters that did not result in any charges being laid against the Applicant.
70 Importantly for present purposes, the evidence referred to and relied on in the Tribunal’s summary is derived, at least in part, from the SAPOL records. The summary also includes reference to a National Police Certificate dated 12 January 2016, a written statement provided by the Applicant and his oral evidence to the Tribunal, as well as “careful regard” to the remarks of the sentencing judges in relation to the 2012 and 2014 offences.
Applicant’s submissions
71 As with Ground One, the Applicant advanced four separate, but interrelated, propositions in support of Ground Two.
(1) When evaluating the risk that the Applicant would pose to the Australian community, the Tribunal is required to evaluate the risk of recidivism. Part of that evaluation involves a determination about the likely future criminal behaviour of the Applicant.
(2) The task of assessing the risk of recidivism is notoriously complex. It involves an analytical process where the nature and circumstances of past offending are integral and where a range of present circumstances may bear on the likelihood of past offending being repeated: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595.
(3) The SAPOL records contain untested and uncorroborated hearsay evidence of alleged behaviour and, importantly, are not findings of fact made by a court.
(4) It was procedurally unfair and/or legally unreasonable to rely on the SAPOL records in circumstances where the prejudicial effect of relying on untested and uncorroborated records outweighed any probative value of the evidence.
72 As a matter of principle, the Applicant conceded that there is no general prohibition on an administrative decision-maker, such as the Tribunal, finding that a person has engaged in conduct that constitutes a criminal offence as a step on the road to exercising a statutory power: see, eg, Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
73 However, the Applicant submitted that there are principles which bear upon the quality of evidence required to support findings about the nature of criminality and the likelihood of a person re-offending. I will refer to those authorities below.
74 In Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; 73 FCR 187, the Full Court (Burchett, Branson and Tamberlin JJ) considered a previous iteration of s 501 of the Act, which required the Minister to have regard to the person’s “past criminal conduct”. The Full Court held as follows (at 194):
At the outset, we should say that we agree with his Honour that the words of the statute "past criminal conduct" cannot be read down to refer only to past conduct the subject of criminal convictions…It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material…
[Emphasis added]
The need for caution before reaching a view that criminal conduct has occurred, absent a prosecution and conviction, was noted with approval by this Court in Brown v Minister for Immigration and Citizenship [2009] FCA 1098; 112 ALD 67 at [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [128] (Nicholas J, with whom Moore and Rares JJ agreed).
75 The Applicant also referred to a more recent decision, FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754. In FTZK, French CJ and Gageler J held (at [16]) that “meticulous investigation and solid grounds” are required to make findings about criminal conduct in the migration context and “the decision-maker must pay close attention to the probative relevance of the material” before him or her. Similarly, the Applicant directed the Court’s attention to the observations of McHugh J in Papakosmas v R [1999] HCA 37; 196 CLR 297 at [84], where his Honour observed that the rationale for the hearsay rule includes the “potential unreliability [of hearsay evidence] and the threat that hearsay poses to procedural fairness”.
76 Of particular importance to this application is a decision of the Full Court in Splendido. In that decision, Mortimer J (with whom Moshinsky J agreed) upheld the primary judge’s conclusion that the material relied upon by the Minister, which included records of convictions, was simply too vague to ground, rationally, findings about the applicant’s future behaviour (see especially at [41] and [50]). Her Honour added at [52]:
… Having decided to place at the forefront of his reasoning a finding that Mr Splendido posed an unacceptable risk to the Australian community because of the likelihood he would re-offend, that finding was required to be based on probative material, and in my respectful opinion the primary judge was correct to find there was none. Instead, the finding involved no more than speculation on the part of the Assistant Minister.
77 The Applicant also referred to the cautionary remarks in Splendido in relation to recidivism analysis (at [72], citing RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 at [16]-[17] (Maxwell P and Weinberg JA)) and the limitations of tendency reasoning as a form of deductive logic (at [73], citing Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [70]-[72] (Gageler J)). Such remarks culminate in the observations at [77]-[78]:
The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, as Hughes and the authorities before it demonstrate. In the sentencing context, or in a context of any further exercise of power to detain a person, where a court is required to address a person’s risk of re-offending in the future, the complexity of that analytical process and the difficulty of judges undertaking that task themselves is judicially acknowledged, as the observations in RJE demonstrate.
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending. In these processes, a court acts on more than the bare historical fact of when and where a person committed offences and the legal description of those offences. Otherwise, the prejudicial and impermissible kind of reasoning to which Gageler J referred in Hughes is what can dominate any reasoning process.
[Emphasis added]
78 The Applicant also referred to a decision of Kenny J in CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; 163 ALD 101. In CVN17, her Honour explained the relevant evidentiary material at [98]:
Further, the alleged incidents of “Burglary with breaking” and “Common Assault” were never contested before a court: no plea was ever entered, no witnesses were called, and no conviction was recorded. The material on which the Tribunal relied in relation to these incidents was apparently drawn from police service files from 2003…
79 Her Honour added at [99]-[100] that:
I reject the Minister’s submission that the applicant’s conduct as a nine-year-old child was not a significant part of the Tribunal’s decision. This argument is difficult to reconcile with the prominence of the references to this conduct in the Tribunal’s reasons, including in the Tribunal’s conclusion. As already stated, by commencing its consideration of the escalating pattern of seriousness of offending at a time when the applicant could not, by law, be attributed with criminal responsibility, the Tribunal focussed on a consideration that was irrelevant to that supposed pattern. Evidence of the conduct of the applicant at nine years of age was, for the same reason, incapable of providing a logical basis for the Tribunal’s statement that the applicant’s “history of offending” began at this young age. Yet the Tribunal’s conclusion at [120] indicated that the identification of such a pattern and history of offending was an important element in the Tribunal’s decision-making. This is borne out by the fact that such an approach was in apparent conformity with Direction No 65: see [86]-[89] above.
This does not mean that, on review of a decision not to revoke a visa cancellation decision under s 501CA(4)(b)(ii), the Tribunal cannot take into account evidence about a former visa holder’s conduct as a child. Rather, it is to say no more than that evidence of that conduct must have some relevance to an issue that properly arises in the course of the Tribunal’s decision-making and that there must be some logical connection with the inferences or conclusions that the Tribunal then draws from that evidence. It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.
[Emphasis added]
80 Then, at [102], her Honour concluded:
For the reasons stated, [this] is not only of sufficient merit to justify the extension of time sought by the applicant, it also discloses jurisdictional error.
81 The Applicant relied on CVN17 as supporting the contention that the Tribunal erred, in this instance, by referring to contemporaneous police records that were not formal police summaries and were not matters in relation to which the Applicant was convicted. In this respect, the Applicant relied on the well understood metaphor that by considering the SAPOL records, there would be a ‘poisoning of the well’ which infected the Tribunal’s reasoning.
82 This is because, as I have explained above, the Tribunal regarded the risk of future harm to the community as unacceptable, assuming the Applicant was permitted to remain in Australia. It was therefore the Applicant’s contention that the Tribunal reached this view based, at least in part, on the information contained in the SAPOL records.
83 Having regard to the principles set out above, the Applicant submitted that relying on the SAPOL records in this way was procedurally unfair and, further, or alternatively, it was legally unreasonable. The Applicant contended it was legally unreasonable because the SAPOL records were prejudicial to the Applicant and, in the context of assessing the risk of recidivism being a notoriously difficult task, that exercise should not be founded upon material which has a tenuous evidentiary foundation. Further, the Applicant submitted it was procedurally unfair because he did not have the opportunity to test the veracity of the SAPOL records and, once considered by the Tribunal, that information might lead to the nature and seriousness of the Applicant’s offending being conflated due to cognitive biases.
84 In short, the Applicant’s submission was that that the Tribunal erred by reaching a conclusion about the likelihood of future criminality based in part on uncorroborated police accounts, where the probative value of such evidence was substantially outweighed by the fact that the Applicant had never been given an opportunity to forensically test the underlying assertions contained in the SAPOL records.
85 The Applicant accepted that the underlying information that was reported in the SAPOL records may have been useful to the Tribunal but not in the form that the Tribunal received that information. The Applicant also acknowledged that it was conceivably relevant to the determination of future criminality to hear evidence from police officers who had interacted with the Applicant and who had decided to charge him or not charge him, as the case may be. However, the Applicant submitted that to simply rely on the accounts of those police officers, contained in untested and uncorroborated reports, is legally unreasonable.
Minister’s submissions
86 At the outset, the Minister submitted that it was important to recall that the Tribunal is not bound by the rules of evidence (including rules governing the admission of hearsay): s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In relation s 33 of the AAT Act, Hill J observed as follows in Casey v Repatriation Commission [1995] FCA 847; 60 FCR 510 at 514:
[Section] 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the tribunal or taken into account by it. The criterion for the admissibility of material in the tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.
87 Further, and crucially, the Minister submitted that the Tribunal made no positive finding of criminal conduct by the Applicant based on hearsay evidence. In this respect, it was the Minister’s contention that the Applicant has not identified what positive findings of criminal conduct the Tribunal is said to have made for which the Applicant was not convicted. The failure to identify any such findings with precision is, the Minister submitted, fatal to Ground Two.
88 Relatedly, the Minister directed attention to the fact that, at [21]-[23] of the Decision Record, the Tribunal referred only to offences for which the Applicant has been convicted when considering protection of the Australian community, under the heading “the nature and seriousness of the non-citizen’s conduct to date”. In my view, there is utility in setting out those references made by the Tribunal in full to properly appreciate the essence of the Minister’s submission:
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
21. The offences of intentionally causing harm and cultivating a commercial quantity of cannabis are serious offences. For the offence of intentionally causing harm the applicant was sentenced to 2 years and 10 months imprisonment with a non-parole period of 18 months. That sentence was suspended upon the applicant entering into a good behaviour bond for a period of 2 years. The applicant breached his good behaviour bond by committing the further offence involving the cultivation of cannabis. For this offence he was sentenced to 18 months imprisonment in 2014. The sentencing judge considered the drug offence a serious offence, which was made more serious because it was committed whilst subject to a suspended sentence.
22. I take into account that the offence of intentionally causing harm involved some violence albeit that the sentencing judge was not satisfied beyond reasonable doubt that the applicant actually stabbed the victim. However, the sentencing judge found that the applicant was aware that his co-accused had the knife and may use it.
23. These more serious offences where [sic] committed in 2009 and 2013 when the applicant was 23 and 28 years old respectively. He was not a young man at that time. The applicant was 16 years old when he arrived in Australia in 2001. Three years later he committed his first offence and he has offended regularly since then. He was convicted of disorderly behaviour and resisting police in 2006 and 2007 and again in 2012. There were other convictions for possessing and using a prohibited weapon in March 2008 and damaging property in October 2010. I take into account that his offending has been frequent and commenced soon after his arrival in Australia with a trend of increasing seriousness. The cumulative effect of his repeat offending is very relevant.
89 The Minister further submitted that the Applicant draws no useful support from the Full Court’s reasoning in Splendido, despite extensive reliance on it. In particular, the Minister submitted that the present circumstances are distinguishable because the Tribunal’s reasoning was not premised on a “bare recitation” of what the Applicant had done in the past, in concluding that there was a likelihood that he would commit similar offences again. To the contrary, the Tribunals’ reasoning as to the nature and seriousness of offending was focused principally on the convictions from 2012 and 2014, which I have summarised above at [4]. In addition, to the extent that Splendido emphasises the importance of considering the circumstances of past offending in assessing the risk of recidivism, that only serves to underline the potential forensic utility of documents such as the SAPOL records in providing a complete picture of the Applicant’s risk of re-offending.
90 The Minister also referred to Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 in which Anderson J dismissed a similar challenge to reliance by the Tribunal on police records, where that evidence had not been tested by cross-examination. The Minister summarised Anderson J’s findings as follows:
(1) the Tribunal, in discharging its obligation to afford procedural fairness, is not required to ensure that the makers of hearsay statements, on which the Tribunal is invited to place weight, are called and available for cross-examination ([at 53], see also [69]); and
(2) various features of the statutory framework under both the AAT Act and the Migration Act “weigh against importing into the Tribunal’s decision-making process detailed consideration of whether or not material ought to be excluded from consideration under the technical rules related to the rule against hearsay” (at [67]).
91 Finally, the Minister submitted that the Applicant has not articulated what was “procedurally unfair” about the Tribunal’s conduct. The Applicant had ample opportunity to make submissions or adduce evidence about the inaccuracy of the reports contained in the SAPOL records, and could have tested the evidence by calling the authors and witnesses of those reports. The Applicant did not do so, nor did he identify to the Tribunal the particular information that he claims was inaccurate. In any event, the Minister submitted that Ground Two in the Amended Originating Application only refers to legal unreasonableness, rather than unfairness at large, such that the Applicant’s submissions are divorced from any articulated ground of the application.
Consideration of Ground Two
92 In its examination of the factors for and against revoking a mandatory cancellation decision pursuant to 501CA(4)(b)(ii) of the Migration Act, the Tribunal was required to evaluate the risk to the Australian community. An indispensable aspect of that evaluation involved making a determination about the likelihood of the Applicant engaging in criminal behaviour in the future. In that respect, the Tribunal concluded at [67] of its Decision Record:
…the risk of future harm from the applicant is unacceptable because of the serious and frequent nature of the crimes committed.
93 That conclusion, and the reasoning which underpins it, is in my view unaffected by jurisdictional error. For the reasons that follow, I do not accept Ground Two.
94 First, I have concluded that the Applicant has been unable to demonstrate which specific aspects of the Tribunal’s reasons were influenced, prejudicially, by the SAPOL records. Properly contextualised, the reference to SAPOL records appears in an extract from the 2017 Tribunal Decision, under a heading discussing matters the subject of convictions. There is no engagement or assessment of those records, other than by reference to the 2017 Tribunal Decision. It is therefore difficult to grasp how SAPOL records may be said to have ‘poisoned the well’ or infected the Tribunal’s reasoning in any way.
95 In this regard, the present application is distinguishable from CVN17. The substantive point of difference is that the evidence which her Honour considered should be treated “cautiously” in CVN17 assumed central prominence in the Tribunal’s reasons, including in its ultimate conclusion (see especially at [99]). The same cannot be said here, where the SAPOL records were not relied upon by the Tribunal as a factual basis for assessing the future risk posed by the applicant, if he were allowed to remain in Australia. Further, in my view, any findings by the Tribunal founded upon the SAPOL records, whether entirely or together with other evidence, were inconsequential to the findings upon which the Tribunal concluded that the Applicant posed an unacceptable future risk of harm to the Australian community.
96 In addition, I regard it as significant in this context that the Tribunal is not bound by the rules of evidence. The Tribunal is engaged in an evaluative exercise, the boundaries of which cannot be precisely demarcated. Properly focusing on the statutory task of the Tribunal, there was nothing legally unreasonable about weighing up all the evidence and giving appropriate weight to the matters for which the Applicant was convicted, to mattes in respect of which he was charged but not convicted, as well as to matters in respect of which he was not charged. As is plain from the Decision Record, it is the convictions from 2012 and 2014 which principally informed the Tribunal’s assessment of the nature and seriousness of the Applicant’s prior offending and, consequently, risk of re-offending.
DISPOSITION
97 For the above reasons, the application should be dismissed with costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. |
Associate:
