Federal Court of Australia

FGBP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 253

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent's costs to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant is aggrieved by a decision of the Administrative Appeals Tribunal affirming a decision of the delegate of the Minister not to revoke the cancellation of the applicant's Class XB Subclass 200 Refugee visa under s 501CA(4) of the Migration Act 1958 (Cth). He applies to this Court for judicial review of that decision.

2    There are two grounds of review. First, it is alleged that the Tribunal's reasoning was illogical and unreasonable in the manner in which it dealt with the risk that the applicant would continue to commit offences. Second, it is alleged that the Tribunal's reasoning was illogical and unreasonable in that the Tribunal determined to place only low weight on a finding that there would be a severe negative impact on the applicant's former partner should he return to his home country.

Background

3    The applicant is a citizen of Liberia. He was granted his visa on 13 December 2006. He arrived in Australia in 2007 when he was 18 years old, accompanied by his sister.

4    The applicant has a substantial criminal record. His offending includes traffic offences, drug offences and violence offences, including domestic violence offences.

5    On 19 May 2014 the applicant was convicted in the District Court of Queensland of unlawful wounding. The offence led to the male victim, who was hit with a bottle, being hospitalised. The applicant was sentenced to a term of 18 months' imprisonment but released on immediate parole.

6    On 20 August 2014 the Department wrote to the applicant indicating that a decision had been made not to cancel his visa under s 501 of the Act. The applicant acknowledged receipt of the letter. The letter gave the following 'formal warning':

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

7    On 29 May 2017 the applicant was convicted of unlawful wounding. The offence occurred on 13 March 2016. The victim was wounded with a piece of glass, which the sentencing judge found was used by the applicant as a weapon. The applicant was sentenced to two years and six months imprisonment, partly suspended.

8    Whilst on bail in 2016 the applicant committed a number of serious domestic violence related offences. On 15 November 2016 he was convicted of assaults occasioning bodily harm - domestic violence offence and contravention of domestic violence order. On the same day he was also convicted with respect to separate conduct of contravention of domestic violence order and breach of bail granted condition - domestic violence offence. He was also convicted with respect to another episode of contravention of domestic violence order and wilful damage - domestic violence offence. The effective concurrent sentence imposed on him for those offences was nine months' imprisonment with a non-parole period of three months.

9    On 7 December 2016 a delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Act. The delegate did so because the applicant had a 'substantial criminal record' because of the operation of s 501(6)(a) and s 501(7)(c). The applicant was notified of the decision and was invited to make representations about the possible revocation of the cancellation decision. The applicant did so.

10    In 2017 the applicant was convicted of contravening a domestic violence order and sentenced to nine months imprisonment, suspended for two years.

11    The applicant also had convictions for a number of other offences including assault and drug offences.

12    On 1 August 2018 a delegate of the Minister notified the applicant that after consideration of his representations the decision had been made under s 501CA(4) not to revoke the original decision. Therefore, the visa remained cancelled.

13    On 8 August 2018 the applicant applied to the Tribunal for review of that decision. The Tribunal on 23 October 2018 made a decision affirming the delegate's decision not to revoke the cancellation of the applicant's visa. The applicant sought review of that decision in the Federal Court.

14    On 4 December 2018 the applicant then applied for a protection visa. That application was refused by a delegate of the Minister on 29 April 2019. He sought review of that decision in the Migration and Refugee Division of the Tribunal. On 3 July 2019 the Tribunal affirmed the delegate's decision to refuse to issue the applicant a protection visa.

15    On 10 July 2019 this Court made orders by consent issuing a writ of certiorari to the Tribunal quashing its decision of 23 October 2018 not to revoke the decision to cancel the applicant's visa.

16    On remittal, the Tribunal on 29 September 2020 again affirmed the decision of the delegate not to revoke the decision to cancel the applicant's visa: FGBP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3816. It is this decision of the Tribunal that is the subject of this review application.

The statutory framework

17    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to a substantial criminal record, or sexually based offences involving a child, and that the person is serving a full-time sentence of imprisonment. The power may be exercised by a delegate of the Minister.

18    It is not in issue that the applicant did not pass the character test on the basis that he has a 'substantial criminal record' in that he was sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). That was the basis for the delegate cancelling his visa.

19    Section 501CA(4) of the Act empowers the Minister to revoke the cancellation decision:

(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.

20    Section 500(1)(ba) of the Act provides that a person may apply to the Tribunal for review of a decision of a delegate of the Minister made under s 501CA(4).

21    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. Section 499(2A) relevantly imposes an obligation on a person or body (including a delegate of the Minister and on review the Tribunal) to comply with a direction made under s 499(1).

22    At the time of the Tribunal's decision, the relevant Ministerial direction was Direction No 79, entitled 'Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA' (Direction). The Direction is binding on the members of the Tribunal as a fetter on discretion: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65]. The exercise of the discretion conferred is to be informed by the principles stated in the Direction.

23    Clause 8(1) of the Direction requires decision-makers to 'take into account the primary and other considerations relevant to the individual case'. Pursuant to cl 8(4), primary considerations 'should generally be given greater weight than the other considerations'. According to cl 8(5), 'one or more primary considerations may outweigh other primary considerations'.

24    The relevant primary considerations are contained in cl 13 of Part C of the Direction. They comprise the protection of the Australian community from harm as a result of criminal activity or other serious conduct; the best interests of minor children in Australia affected by the decision; and the expectations of the Australian community.

25    Clause 14 of the Direction sets out 'other considerations' that must be taken into account where relevant. The other considerations include international non-refoulement obligations; the strength, nature and duration of ties to Australia; the impact on Australian business interests; the impact on victims; and the extent of impediments that the applicant may face if removed to their home country.

26    Pursuant to s 25 and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal must 'stand in the shoes' of the decision-maker and determine for itself the decision that should be made on the evidence before it, exercising the relevant powers and discretions conferred on the Minister: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The Tribunal has a statutory process to follow in conducting a hearing. It results in the material that was before the Minister's delegate being considered, as well as further evidentiary material and submissions provided to the Tribunal.

27    The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: s 476A(2) of the Act.

28    In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ). Further, an error will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

The relevant clauses of the Direction

29    For the purpose of this review application, two of the considerations in the Direction are of particular relevance, being those referred to at cl 13.1(2)(b) read with cl 13.1.2, and cl 14(1)(d) read with cl 14.4.

30    Ground 1 directs attention to what the Tribunal referred to as Primary Consideration A, being protection of the Australian community. Clause 13.1(2) of the Direction provides (in effect) that when considering such protection, decision-makers should also give consideration to:

(a)    the nature and seriousness of the applicant's conduct; and

(b)    the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

31    Clause 13.1.2 provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal 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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

32    Ground 2 directs attention to the 'other consideration' of impact on victims, as referred to in cl 14(1)(d) of the Direction. Clause 14.4(1) provides in effect that relevant regard must be had to the:

Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness

33    One of the victims of the offending in this case, being the applicant's former partner (referred to as Partner B), claimed that a decision not to revoke the cancellation decision would have a severe negative impact on her.

The Tribunal's decision

34    It was not in issue that the applicant did not pass the character test. Nor, having regard to the grounds of review, is it necessary to address the manner in which the Tribunal addressed the remaining considerations, other than in summary form.

Protection of the Australian community

35    The Tribunal commenced its assessment of this consideration by reviewing the nature and seriousness of the applicant's conduct, setting out the details of the applicant's offending, including by reference to sentencing transcripts, prosecution statements and prosecution briefs.

36    The Tribunal properly observed that the Direction provides that crimes of violence are to be viewed very seriously: this is expressly provided for in cl 13.1.1(1)(a). Crimes of violence against women are to be viewed very seriously: cl 13.1.1(1)(b).

37    The Tribunal concluded:

68.    The Tribunal has taken into account that some of the Applicant's offences have been linked to alcohol and drug use and that the Applicant has attributed much of his offending to his use of alcohol and drugs. The Tribunal considers that these matters may provide part of an explanation for the Applicant's offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant's offending, or its seriousness.

69.    While it is difficult to gauge the cumulative effect of the Applicant's repeated offending, it is safe to say that the Applicant's violent offending has resulted in a number of members of the Australian community being subjected to violence with the resulting physical and psychological effects this kind of violent offending brings.

70.    The Tribunal finds that the Applicant's violent conduct is very serious.

38    The Tribunal then considered the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the applicant engaging in that conduct.

39    It concluded that if the applicant were to re-engage in criminal conduct similar to his past violent conduct, it is likely that the nature of the harm to victims would be that they would suffer from violent crimes, including actual or grievous bodily harm, with potential lifelong physical and mental consequences and possibly death.

40    Because the Tribunal's reasoning process as to the likelihood of the applicant reoffending is impugned, I will include the relevant section of the reasons in full:

74.    There is no expert evidence before the Tribunal as to the likelihood that the Applicant will reoffend.

75.    The Tribunal has taken into account that the Applicant attended approximately three rehabilitation sessions which each lasted four or five hours. The Applicant indicated that the sessions related to drug and alcohol rehabilitation. He also said that there was some focus on domestic violence prevention.

76.    The Tribunal has also taken into account the Applicant's claims that he is now drug and alcohol free and that his time in jail and immigration detention has had a positive effect on him. The Tribunal has taken into account the Applicant's evidence that he has been drug and alcohol free since being imprisoned in September 2016.

77.    The Tribunal has also taken into account that the Applicant has claimed that he is remorseful for his conduct and will not reoffend again in Australia.

78.    The Tribunal is not particularly persuaded by the Applicant's arguments that he has refrained from committing offences while in prison and detention and that this shows he is no longer a risk to the community. The Tribunal is willing to accept that it may be the case that drugs and/or alcohol were available to the Applicant in prison or detention. If that is the case, it is commendable that the Applicant has not returned to drugs or alcohol during his detention. However, the Applicant's most serious offending has involved wounding in public and offending against his former partner. These offences were committed outside of the confines of detention where the Applicant was not being closely monitored and where his former partner was not present. If the Applicant is released from detention, there will be no equivalent monitoring of the Applicant, drugs and alcohol will be readily available to him and he will have access to his former partner.

79.    The Tribunal has placed significant weight on the Applicant's lengthy and repetitive criminal history. The Applicant has committed numerous offences from 2011 to 2016. The Applicant has been sentenced to periods of imprisonment on 4 occasions. It does not appear that the Applicant has been at all deterred by the sentences handed down by courts over the years.

80.    The Applicant has had no employment for most of the time that he has been in Australia. It appears that he has not been employed since he met his second former partner ('Partner B') in 2012. It appears likely that the Applicant will remain unemployed, at least for some time, if he is allowed to remain in Australia.

81.    The Tribunal has considered the statements provided in support of the Applicant including statements from the Applicant himself, the Applicant's sister, his former partners, the President of the Liberian Association of Queensland, a pastor, and a social worker. The Tribunal accepts that the Applicant has a supportive sister who will try her hardest to ensure that the Applicant does not reoffend. The Tribunal also accepts that Partner B is likely to provide the Applicant with support especially in so far as it relates to the Applicant being involved in their son's life.

82.    However, any support that the Applicant is likely to have in the community must be tempered by the fact that the Applicant had similar levels of support in the community previously while he was offending. Of particular concern is that much of the Applicant's offending was committed against Partner B. At the hearing, the Applicant indicated that he and Partner B were still in a relationship. However, Partner B indicated that any romantic relationship between the two was over. She said that the extent of the relationship going forward would be that she wanted their son to have access to his father. She indicated that if the Applicant were allowed to remain in Australia, he would not live with her, that he would live with his sister.

83.    The Tribunal is concerned that while the Applicant and Partner B are no longer in a romantic relationship, it appears that the Applicant will continue to have access and proximity to Partner B. In the past, domestic violence orders have been unsuccessful in preventing the Applicant from committing serious acts of violence against Partner B. On two occasions in the presence of their child.

84.    The Tribunal has also placed significant weight on the fact that in 2014 the Applicant was given a written warning about the consequences of further offending in terms of his migration status. The Applicant went on to commit multiple serious violent offences after having received the warning. He was well aware that committing further offences may result in his visa being cancelled. Rather than preventing the Applicant from offending, his offending only became worse.

85.    The Tribunal is satisfied that given the Applicant's intensive criminal history and his failure to cease offending despite being convicted of offences, being subjected to domestic violence orders and being warned that further offending may result in the cancellation of his visa, there remains a real risk that the Applicant will continue to commit offences including violent offences against members of the Australian community if he is allowed to remain in Australia.

Conclusion: Primary Consideration A

86.    The Tribunal has found that the Applicant's violent conduct is very serious. The nature of the Applicant's offending involves repeated violent conduct against members of the Australian community.

87.    The Tribunal has found that, if the Applicant were to commit further violent offences in Australia, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences and possibly death.

88.    The Tribunal has found there is a real risk that the Applicant will engage in violent crime in the future if he is allowed to remain in Australia.

89.    After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant's visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.

90.    The Tribunal attributes significant weight against revocation of the cancellation of the Applicant's visa to the primary consideration of the protection of the Australian community.

41    The Tribunal then considered the best interests of minor children in Australia at paras 91-130, relevantly finding that it is in the best interests of the minor children in his life (two children of his own and nieces and a nephew) to revoke the cancellation of his visa. The Tribunal put significant weight in his favour on this consideration insofar as it related to his two children, and moderate weight on it in his favour insofar as it related to his nieces and nephew: at paras 128-129. Overall, the Tribunal concluded that it placed significant weight on this consideration in the applicant's favour: at para 130.

Impact on victims

42    As to this 'other consideration', the Tribunal said as follows:

154.    It is likely that this consideration [cl 14.4(1)] was envisaged to take into account any expressed views of members of the Australian community, in a particular victims or members of their families, on the impact on them of a decision not to revoke the cancellation of an applicant's visa.

155.    This appears to be a rare case where a victim of some of the Applicant's most serious offending has sought for the cancellation of the Applicant's visa to be revoked. That is, that a decision not to revoke the cancellation of the Applicant's visa would have a severe negative impact on the victim of the Applicant's offending. In this case, the Applicant's former partner, Partner B, is the victim of some of the Applicant's most serious offending. The Tribunal has also found that she is also a potential victim of any future violent offending.

156.    Partner B has expressed that she dearly wishes for the Applicant to be able to remain in Australia. The main reason for this is because the Applicant is the father of her child and she believes that it is clearly in the best interests of her child that his father remains in Australia to provide him love and support and also to provide for him financially.

157.    The Tribunal notes that it does not have any evidence of the impact of the decision not to revoke cancellation on any other victims of the Applicant's offences, or their family members.

158.    The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant's visa. The Tribunal places low weight on this consideration in the Applicant's favour.

Conclusion

43    The Tribunal then concluded, stating as follows:

167.    The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant's offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will reoffend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant's family that non-revocation would cause and the length of time that the Applicant has spent in Australia.

168.    The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his two sons, his three nieces and nephew, weighs significantly in favour of revocation of the cancellation decision.

169.    The Tribunal has found that the consideration of Australia's international non-refoulement obligations is a neutral consideration in this case.

170.    The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of impact on victims weighs in the Applicant's favour and has attributed low weight to this consideration. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration.

171.    After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant's favour.

Grounds of review

44    The applicant's grounds of review are as follows:

1.    The decision of the Second Respondent dated 29 September 2020 involved jurisdictional error in that the Tribunal's finding at [85] that there was a real risk that the Applicant would continue to commit offences including violence offences was:

a.    illogical and unreasonable; and

b.    without an evident and intelligible justification.

Particulars

i.    the Second Respondent acknowledged at [74] that there was 'no expert evidence before the Tribunal as to the likelihood that the Applicant will reoffend';

ii.    the Second Respondent gave no weight to the fact that the Applicant had not committed any offences, let alone any serious or violent offences, for a period of four years as at the date of its decision;

iii.    there was accordingly no basis for the Second Respondent's finding at [79] that 'it does not appear that the Applicant had been at all deterred by the sentences handed down by courts over the years';

iv.    the Second Respondent discounted the Applicant's evidence that he was drug and alcohol free on the basis of a finding for which there was no evidence, namely that drugs and alcohol would be readily available to the Applicant (at [78]);

v.    the Second Respondent discounted the Applicant's evidence and statements support of the Applicant (at [81]) to the effect that he would be supported in the community if he were to be released on the basis of a finding for which there was no evidence, namely that the Applicant 'had similar levels of support in the community previously while he was offending' (at [82]);

vi.    the implicit finding at [82] that such supports as would be available to the Applicant upon his release would be ineffective to prevent him from reoffending was made without evidence; and

vii.    the decision of the Second Respondent to ignore or give no weight to evidence which suggested that there was a low likelihood of the Applicant re-offending was made without any evident or intelligible justification.

2.    The decision of the Second Respondent dated 29 September 2020 involved jurisdictional error in that the Tribunal's determination at [158] to place only low weight in the Applicant's favour on the consideration prescribed by paragraph 14.4(1) of Ministerial Direction 79 was:

a.    illogical and unreasonable; and

b.    without an evident and intelligible justification.

Particulars

i.    the Second Respondent found at [155] that the Applicant's partner 'is the victim of some of the Applicant's most serious offending,' and, 'is also a potential victim of future violent offending';

ii.    the Second Respondent further found at [155] that a decision not to revoke the cancellation of the Applicant's visa would have a severe negative impact on the Applicant's partner;

iii.    the Second respondent found at [158] that the consideration prescribed by paragraph 14.4(1) of Ministerial Direction 79 weighed in favour of revocation;

iv.    the Second Respondent further found at [158] that low weight should be placed on that consideration;

v.    the Second Respondent did not provide reasons for only placing low weight in the Applicant's favour on the consideration prescribed by paragraph 14.4(1) of Ministerial Direction 79;

vi.    in circumstances where the Second Respondent made the findings at [i] and [ii] above, and in the absence of written reasons for placing only low weight on the prescribed consideration, the Second Respondent's decision to only place low weight on the consideration prescribed by paragraph 14.1(1) was made without any evident or intelligible justification.

Ground 1

45    Despite the manner in which the ground was drafted, the applicant submitted that the appropriate formulation of the alleged error for both grounds is that the Tribunal's formation of its state of mind or satisfaction for the purpose of s 501CA(4)(b)(ii) was vitiated because the formation of that opinion was illogical or irrational. The application proceeded on that basis.

46    In doing so the applicant cited Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [43]; and EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 at [58], [70].

47    The proper construction of s 501CA(4) has been the subject of some debate in the cases, particularly as to whether it involves a two-stage decision-making process. The weight of authority is to the contrary: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [21]; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [22]; Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611; and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [1]-[6] (Katzmann J, expressing disagreement with Derrington J on this point). I would follow the prevailing approach.

48    However, this issue of construction does not arise in a way which bears upon the outcome of this review application, because it was apparent from the manner in which the application proceeded that the applicant's criticism was not as to the exercise of any residual discretion but as to the evaluative process involved in the Tribunal's assessment of its state of satisfaction as to whether or not there is another reason not to revoke the cancellation decision. The criticism was that there were irrational or illogical findings of fact made on the way to the Tribunal's final conclusion that there was not another reason to revoke the cancellation decision.

49    There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60], the Full Court endorsed Wigney J's collection of relevant principles in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, including the following paragraphs from SZUXN:

[52]    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality or irrationality must be shown, 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions'. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

[54]    … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings 'on the way' to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

[55]    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291[66]; SZWCO at [64]-[67].

[56]    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

50    The reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[132] (as referenced in part by Wigney J) were referred to by the Minister in this case as authority for the proposition that, notwithstanding the difficulties in doing so, it is possible for illogicality regarding critical findings of fact on the way to a decision-maker's ultimate conclusion to amount to jurisdictional error.

51    Further, as the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently said in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41:

[17]    If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister's power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. By 'no evidence' this has traditionally meant 'not a skerrick of evidence'.

52    It is in the context of those principles that the applicant's grounds arise for consideration.

53    The applicant's arguments distil generally to the following:

(a)    there was no expert evidence as to the likelihood that the applicant will reoffend;

(b)    against that absence of expert evidence, there was evidence which suggested a low probability of re-offending: being the applicant's evidence that he was drug and alcohol free at the time of the hearing before the Tribunal; that he had expressed remorse for his conduct; that he had not committed any further offences while in prison and immigration detention; and that he had support from his family and members of the Liberian community;

(c)    the Tribunal did not indicate that it rejected or disbelieved any of that evidence or was inclined to afford it little weight, but rejected it on the basis of unsupported or irrelevant assertions;

(d)    there was no evidence that the applicant would reoffend if his criminal history was reconciled with such evidence;

(e)    there was no basis to assume the applicant would consume alcohol or drugs; and

(f)    there was no basis to assume that community supports would not be effective.

54    Nothing turns on the absence of expert evidence as to reoffending. There is no question that expert evidence that seeks to predict reoffending may be relevant: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [72] (Mortimer J). However the applicant did not seek to adduce any expert evidence as to the prospect of his reoffending and it was not incumbent on the Minister to obtain such evidence.

55    It is important to recall that the Tribunal is obliged to undertake an assessment of risk of reoffending for the purpose of cl 13.1.2. The notion of risk involves possibility in the future: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EYR19 [2021] FCAFC 133 at [81]; and Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [63]. The Tribunal is not obliged to make a finding as to whether or not the applicant will reoffend. The contextual background and circumstances of past offending are relevant to a rational and reasonably based assessment of the likelihood of the applicant being at risk of engaging in the kind of offending conduct that he had been involved in previously.

56    In Splendido Mortimer J explained:

[77]    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.

[78]    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.

[79]    Although the Assistant Minister's task in s 501CA is conducted within a statutory process which is procedurally and substantively distinct from the criminal contexts I have discussed above, as this case demonstrates, a person's criminal history may nonetheless be a significant factor influencing the exercise of that discretionary power. When that is the case, the flaws which have been identified in reasoning processes about past offending are just as likely to arise in the use of a person's criminal record in the exercise of the s 501CA discretion.

57    Splendido was a case where the Minister did not have before him materials such as sentencing remarks or police summaries of the offending conduct, and where significant reliance was seemingly placed upon only a National Police Certificate.

58    That is not this case. The Tribunal in this case had before it a National Police Certificate but also agreed summaries of facts, sentencing remarks, the Queensland Police Service Court Brief for the 12 October 2017 conviction for a domestic violence offence, facts which were admitted by the applicant before the Tribunal and a number of other Queensland Police Service Court Briefs relevant to the offending, also referred to in the reasons. The criminal history referred to breaches of bail and breaches of domestic violence conditions. It was also the case that the applicant had acknowledged receipt of the 20 August 2014 notice which contained the warning as to future offending.

59    It was appropriate for the evaluative task to have regard to the time period since the last offending, and the Tribunal did so. The applicant asserts in his grounds that the Tribunal failed to give any weight to the absence of offending for the four years prior to the decision. That is not so. The Tribunal had regard to the absence of offending over that period but noted that during that period the applicant had been in detention (since 2016) and that further, some of his violent offending had taken place in a domestic context. The recognition of the relevance of those matters as part of the assessment of risk was rational. The Tribunal reasoned that the importance to be placed on the absence of offending during that period was affected by those circumstances.

60    The Tribunal's statement that the applicant did not appear to have been deterred by the sentences he had received is not to be read in isolation. The Tribunal was (at para 79) commenting on the number of occasions when the applicant was sentenced to terms of imprisonment. The fact that the applicant had offended again despite his prior convictions and sentences was a matter which the Tribunal was entitled to take into account as part of the assessment of risk of reoffending. It was not a statement made without basis: it had an evidentiary basis in the multiple sentences of imprisonment but also in the nature of the offending. For example, the evidence disclosed offending that occurred in breach of bail and domestic violence orders, and after the warning that the applicant had received as to the risk of the revocation of his visa.

61    However, the Tribunal also considered whether the applicant might be exposed upon his release into the community to the circumstantial factors that may have precipitated previous offending. It is in this context that the applicant complains about the Tribunal's reference to access to drugs and alcohol and asserts that the Tribunal wrongly assumed he would have such access and wrongly discounted his evidence that he was drug and alcohol free.

62    The Tribunal said that it took into account that the applicant had attended 'approximately three' rehabilitation sessions related to drug and alcohol rehabilitation. The Tribunal noted that the applicant's evidence was that he had been drug and alcohol free since being imprisoned in September 2016. Importantly, the Tribunal did not dismiss the significance of his present abstinence on the basis it was untested because of his imprisonment or detention. Rather, the Tribunal was prepared to accept that the applicant may have had some access to drugs and alcohol in prison or detention and had abstained. But it clearly assumed that the potential for access would be increased in the community, and it was open as a matter of common sense for the Tribunal to make that assumption. Certainly it was not illogical to do so.

63    It is apparent that the Tribunal reasoned that one of the circumstantial factors of some of his offending (drugs and alcohol) would be accessible to him upon his release from prison. It was not illogical to observe that, despite the applicant's evidence that in his present circumstances he was drug and alcohol free, the circumstantial factor of access to drugs and alcohol would be present upon being released into the community. It was not illogical to take that into account as part of the risk assessment process, particularly where it was accepted by the applicant that drugs and alcohol had played some part in some of his offending. At some points in the submissions the applicant seemed to suggest the Tribunal assumed or found without foundation that the applicant will consume alcohol or drugs in the community. The reasons do not support that submission. The Tribunal was undertaking an evaluative process and acknowledgement of the potential for the applicant to access drugs and alcohol in the community was not illogical in that context.

64    Similarly, the applicant has not persuaded me that the Tribunal erred in the manner by which it considered the circumstantial factor of support that might have been available to the applicant in the community at the time of his offending as compared with the support that might be available to him upon his release into the community. The Tribunal found that although there was evidence of support that would be available after his release, it had to be tempered by the fact that the applicant had previously had support in the community but had continued to offend. Notably, the Tribunal did not dismiss the relevance of promised future support but said in effect that its value is to be tempered. The applicant's contention is that there was 'no evidence' for the finding that there was any previous support. However the Tribunal refers, for example, to the applicant's close relationship with his sister that existed prior to 2016. He would spend most weekends with his son at his sister's house with her four children. Accordingly, there was some evidence as to his relationship with his sister and her support and evidence that such support coincided with the period when he continued to offend. Further, the evidence of support from the representative of the Liberian Association of Queensland (letter dated 3 September 2018) indicated that the representative had known the applicant for some 10 years, so also during the period of the offending.

65    The Minister submits that having regard to the threshold requirement referred to in SZMDS of only a 'skerrick of evidence', there was an evidentiary basis for the Tribunal's reference to prior community support as a circumstantial factor in play at the time of the prior offending. I accept that submission. It was therefore open to the Tribunal to find that it was appropriate to temper the weight it might give the evidence of promised community support post release in assessing the risk of reoffending. That reasoning process is not impugned.

66    Nor can it be said that the Tribunal failed to take into account the applicant's expression of remorse for his conduct, when the Tribunal expressly stated that it did so. The Tribunal was not obliged to assume from that expression of remorse that the applicant would not reoffend despite his prior history. Such an assumption does not follow logically. The Tribunal was entitled to have regard to the claimed remorse as one of the factors to be considered as part of its assessment for the purpose of cl 13.1.2 of the Direction. The reasons do not suggest it was disregarded or overlooked.

67    The applicant seeks to separate out and impugn various findings about the circumstantial factors of the offending and the applicant's circumstances at the time of the hearing, when as its reasons reveal, the Tribunal appropriately had regard to the totality of the circumstances, including evidence that favoured the applicant, in evaluating the risk of reoffending. There was no illogicality or irrationality revealed in the decision-making process. There was no formulaic checklist or mechanistic approach. An evaluative approach was undertaken. Simply because the applicant contends that there were other conclusions available does not disclose illogicality or irrationality. The conclusions reached by the Tribunal were reasoned and an evidentiary basis was disclosed. Once so much is understood with respect to matters such as evaluating potential access to drugs and alcohol, the limits on the value that might be accorded expressions of remorse, the valid questioning of the practical value of the proffered community support as a preventative measure and the risks associated with future access to Partner B in the context of domestic violence offences against her, it is apparent that there has been no illogical or irrational finding 'along the way' to the evaluation of the risk of reoffending.

68    Ground 1 must fail.

Ground 2

69    A significant difficulty with ground 2 is that although it is framed by the submissions in terms of illogicality that vitiates the Tribunal's requisite state of mind, the real complaint is about the weight placed on the consideration.

70    The Tribunal acknowledged Partner B's desire that the cancellation decision be revoked. It acknowledged that Partner B wanted the applicant to remain in the country out of concern for their son. Indeed, this appears to be the reason that the Tribunal found that the consideration weighed in the applicant's favour. The applicant complains that the negative impact on Partner B was only accorded low weight, despite the Tribunal describing this impact as 'severe', and asserts those descriptors are at opposite ends of the spectrum.

71    Weight is pre-eminently a matter for the Tribunal to assess, as opposed to this Court on judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. That includes the weight to be ascribed to factors relative to other factors. The Tribunal in the exercise of that task was obliged to have regard to cl 8 of the Direction as to the weight to be given to primary and other considerations. The reasons indicate that the Tribunal undertook this task (see in particular the Tribunal's reasons at paras 170-171).

72    Given the applicant's history of domestic violence offending and only limited evidence of any attempt at focussed rehabilitation (the drug and alcohol rehabilitation sessions were said by the applicant to have had 'some' focus on domestic violence prevention), it was not unreasonable for the Tribunal to conclude that Partner B was at risk of harm. In the context of domestic violence offending, the mere fact that a woman does not seek protection does not mean she has no need of protection and is not at risk of harm: Martin v Minister for Immigration and Border Protection [2017] FCA 1 at [36]. The evidence was that Partner B would continue to see the applicant once released, and so the potential to be at risk of harm remained.

73    Nor was it unreasonable to take into account the potential risk of harm to Partner B when evaluating weight. The inference of an ongoing risk of harm followed logically from the nature of the previous offending against her. It does not follow that because Partner B may be severely impacted by non-revocation that the consideration ought to have been given greater weight than 'low'. The impact on Partner B was to be weighed against all other considerations including the primary consideration of protection of the Australian community should the applicant reoffend, a risk that had the potential to impact on not only Partner B, but others. It is not surprising, and certainly not illogical or irrational, that lower weight might be accorded the identified severe negative impact on Partner B arising from her concerns for her son, once the risk she personally faced of future harm was also considered, a risk that the Tribunal had found existed. Such reasoning does not reveal inconsistency, but an evaluation of weight having regard to (at least) two different concerns, each with a disclosed and evidentiary basis. As the Tribunal further acknowledged, it is unusual for this factor to weigh in favour of revocation at all. Despite it being an unusual scenario, the Tribunal was prepared to accord it some weight, albeit low.

74    Returning to the basis upon which the ground was pursued, no illogicality or irrationality is established in according the consideration low weight. I also accept the Minister's submission that the applicant by ground 2 is inviting the Court to turn this judicial review into an exercise in the review of the merits.

75    Ground 2 must also fail.

Conclusion and costs

76    The application for judicial review must be dismissed. The parties agreed that costs should follow the event. There will be an order for costs to be assessed on a lump sum basis by a registrar if not agreed.

Associate:

Dated:    21 March 2022