Federal Court of Australia

Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 690

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    There issue absolute in the first instance:

(a)    a writ of certiorari quashing the second respondent’s decision of 11 February 2022; and

(b)    a writ of mandamus directed to the second respondent, differently constituted, to exercise the powers under the Migration Act 1958 (Cth) according to law.

3.    The first respondent pay the applicant’s costs, if any, as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J

INTRODUCTION

1    Mr Bristowe applies for judicial review of a decision of the Administrative Appeals Tribunal (the second respondent) made on 11 February 2022 (second decision), affirming a decision of a delegate of the first respondent (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) not to revoke the cancellation of Mr Bristowe’s Class TY Subclass 444 Special Category visa under the revocation power contained in s 501CA(4) of the Migration Act 1958 (Cth).

2    Mr Bristowe has previously challenged a decision of the Tribunal (first decision) made on 7 May 2020 affirming a decision of a delegate of the Minister not to revoke a mandatory visa cancellation decision made on 26 September 2019. On 22 January 2021, this Court granted an extension of time under s 477A(2) of the Act for Mr Bristowe to bring an application for judicial review of the first decision and ordered the issue of a referral certificate for legal assistance: Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 12. Mr Bristowe subsequently obtained representation and filed an application for judicial review which reflected the possible errors identified in the Court’s reasons for judgment. That application was allowed by consent on 21 June 2021. The first decision was quashed and a writ issued for the Tribunal to reconsider and re-determine the matter according to law. The present application concerns the second decision, made upon the matter being remitted.

3    Mr Bristowe secured pro bono legal assistance some days before the hearing of this application. This resulted in the filing of written submissions shortly before hearing and a proposed “amended originating application for review of a migration decision”, containing two grounds. The Court is grateful for the assistance provided.

4    By his two grounds of review, Mr Bristowe contends that the Tribunal made two findings of fact or drew two inferences which were not “an obvious and natural evaluation” of the material before the Tribunal and which, therefore, should have been put to Mr Bristowe for comment in order properly to have afforded him procedural fairness.

5    This confined case centres on the reasoning of the Full Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 590G-591F (citations omitted; emphasis added):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material … [This paragraph was quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32]].

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it … Within the bounds of rationality a decision­ maker is generally not obliged to invite comment on the evaluation of the subject’s case …

The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications [are]:

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it …

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material …

THE TRIBUNAL DECISION

6    It is not necessary to set out the Tribunal’s decision in detail in order to address the two grounds of review. It is sufficient to note the following. Section 500(1)(ba) of the Act entitled Mr Bristowe to make his application for review. The Tribunal was exercising its function of reviewing the decision made by a delegate of the Minister under s 501CA(4). The Tribunal was required by s 499(2A) of the Act to comply with Ministerial Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. One of the “primary considerations” identified in Direction No 90 as one which a decision-maker must take into account where relevant to the decision is “protection of the Australian community from criminal or other serious conduct”: ss 6 and 8(1). In taking into account “protection of the Australian community”, the decision-maker “should … give consideration to … the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”: s 8.1(2)(b).

7    The two findings of fact or inferences which Mr Bristowe contends were not “an obvious and natural evaluation” of the material were made in the context of the Tribunal’s consideration of the risk to the Australian community in the event Mr Bristow were to reoffend or engage in other serious conduct.

8    The first finding is contained in [56] of the Tribunal’s reasons:

[T]he fact that Mr Bristowe made early admissions and pleaded guilty in Court count in favour of a conclusion that he is remorseful for his wrongdoing and accepts responsibility for it. The psychologist who I refer to later expressed that view as well. The difficulty with weighing his early admissions too heavily in his favour is that the writing was most probably on the wall given the undercover police operation and the things that were seized on the execution of the search warrant. Nonetheless it is a factor that counts against the likelihood of repeat offending, but not heavily so.

9    The second finding concerns the evidence of Dr Yoxall who was a psychologist who had prepared a report for the first Tribunal hearing, at which she also gave evidence. Her evidence was also before the Tribunal at the second hearing. The relevant finding is contained in [67] of the Tribunal’s reasons:

Dr Yoxall’s report and her oral evidence [at the first hearing] was not such that would allow a conclusion to be drawn that she considered time, even a long time, in a controlled environment such as in prison or in detention would be a substitute for rehabilitation. This is unsurprising given that the things she identified at paragraph eight in her summary and conclusions are fairly to be read as things that would equip Mr Bristowe to deal with his drug dependence in the community. Ideally rehabilitation intervention that would reduce Mr Bristowe’s risk of reoffending would require, in shorthand terms: treatment, training and support.

THE GROUNDS OF REVIEW

10    The Minister consented, and leave was granted, to the applicant relying on the amended originating application. The two grounds of review were:

1.    The [Tribunal’s] decision was affected by jurisdictional error due to a failure to comply with the requirements of procedural fairness in respect of a finding that the Applicant’s early admissions were “most probably” made because the “writing was on the wall”.

Particulars

(a)    As part of determining the risk presented by the Applicant to the Australian community and the risk of re-offending, the [Tribunal] addressed at [56] the question of whether the Applicant had demonstrated remorse for his wrongdoing, and in so doing held the Applicant’s early admissions should not be weighed “too heavily” in his favour because “the writing was most probably on the wall given the undercover police operations and the things that were seized on the execution of the search warrant”;

(b)    The evidence in relation to the Applicant’s early admissions was contained in the Facts Sheet at CB 78 and the Applicant’s evidence before the [Tribunal] (both in statements and in oral evidence);

(c)    The Facts Sheet at CB 81 recorded that the Applicant was arrested, was “a short time later” conveyed back to Campbelltown police station and made full admissions to supplying MDMA;

(d)    The evidence before the Tribunal did not permit a conclusion that the Applicant knew at the time of making his early admissions that there was evidence seized at his property or that there was an undercover police operation;

(e)    It was not put to the Applicant either by counsel for the First Respondent, nor by the [Tribunal], that his early admissions occurred at a time when “the writing was most probably on the wall” or at a time when the Applicant knew of the undercover operation or that any evidence had been seized from his home;

(f)    The Applicant was given no opportunity to respond to the [Tribunal’s] view (which was not based on evidence before him) that “most probably” the Applicant knew of the undercover operation and the seizure of evidence at the time of his admissions and the Applicant’s early admissions therefore should be afforded less weight than might otherwise be the case;

2.    The [Tribunal’s] decision was affected by jurisdictional error due to a failure to comply with the requirements of procedural fairness in respect of its finding that “Dr Yoxall’s report and her oral evidence was not such that would allow a conclusion to be drawn that she considered time, even a long time, in a controlled environment such as in prison or detention would be a substitute for rehabilitation”.

Particulars

(a)    As part of determining the risk presented by the Applicant to the Australian community and the risk of re-offending, the [Tribunal] addressed at [67] Dr Yoxall’s report and her oral evidence and said that Dr Yoxall’s report and oral evidence “was not such that would allow a conclusion to be drawn that she considered time, even a long time, in a controlled environment such as in prison or in detention would be a substitute for rehabilitation”;

(b)    The evidence before the [Tribunal] did not permit a conclusion that Dr Yoxall did not consider that “time in a controlled environment” (impliedly drug-free) was not a substitute for rehabilitation;

(c)    The [Tribunal’s] conclusions as to the effect of Dr Yoxall’s evidence were not put to her by counsel for the First Respondent or by the [Tribunal] when she gave oral evidence;

(d)    The Applicant was given no opportunity to respond to the [Tribunal’s] view of Dr Yoxall’s evidence as to his need for rehabilitation when he had been drug-free for a period exceeding three years in prison and immigration detention at the time of the [Tribunal’s] decision and in circumstances where the Applicant’s evidence (at CB 731) was that there are “drugs everywhere” in prison.

11    Mr Bristowe’s case, as advanced in written and oral submissions, was based solely on an asserted denial of procedural fairness. Senior Counsel for Mr Bristowe clarified that, by the words used in the amended originating application, Mr Bristowe was not advancing a case that the findings were not open on the available material in the “no evidence” sense described in cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (see in particular at [17]). Particulars (d) and (f) to Ground 1 and particular (b) to Ground 2 were not to be read literally. Rather, those particulars were to be understood as meaning that the relevant inferences drawn by the Tribunal were not an obvious or natural inference, with the consequence that, in the circumstances, procedural fairness required the Tribunal to provide an opportunity to Mr Bristowe to respond before reaching those conclusions.

CONSIDERATION

Ground 1

12    The following observations should be made about the Tribunal’s reasoning at [56]:

(1)    The Tribunal accepted that Mr Bristowe’s early admissions to the police and his plea of guilty counted in his favour by indicating that he was remorseful for his wrongdoing and accepted responsibility for it. The Tribunal considered that the early admissions and the guilty plea counted against the likelihood of repeat offending.

(2)    The Tribunal addressed the weight which it should give to the early admissions and stated: “The difficulty with weighing his early admissions too heavily in his favour is that the writing was most probably on the wall given the undercover police operation and the things that were seized on the execution of the search warrant”. The following matters should be noted:

(a)    This sentence is confined to the early admissions (as opposed to the guilty plea).

(b)    The conclusion that “the writing was most probably on the wall” is expressed in terms of the balance of probabilities.

(c)    Read literally, the third sentence states as a matter of objective fact that “the writing was most probably on the wall”, rather than being a conclusion about Mr Bristowe’s state of mind. Nevertheless, the Tribunal should be understood as having concluded that the early admissions made by Mr Bristowe were, more probably than not, in part made because of a perception on his part that the writing was on the wall.

(d)    The basis of the conclusion that “the writing was most probably on the wall” was said to be “the undercover police operation” and “the things that were seized on the execution of the search warrant”. The Tribunal implicitly inferred that, at the time he made the admissions, Mr Bristowe knew there had been an undercover police operation and knew of the things which had been found on execution of the search warrant.

(3)    The Tribunal’s ultimate conclusion on the question of the weight to be given to the early admissions and what those admissions indicated in terms of remorse, acceptance of responsibility and the likelihood of repeat offending was as follows: “Nonetheless it is a factor that counts against the likelihood of repeat offending, but not heavily so”.

13    The Minister submitted that the Tribunal made no finding that the applicant had knowledge of the “undercover police operation” or the “things that were seized on the execution of the search warrant”. Rather, according to the Minister, the Tribunal’s finding was that, given that these matters occurred as a matter of objective fact, the “the writing was most probably on the wall”. It is true that the Tribunal’s reasons do not expressly state that it considered Mr Bristowe knew about those things at the time he made the early admissions. However, reading the Tribunal’s reasons in a practical common-sense way, it is clear that the Tribunal took the view that, at the time of the admissions, Mr Bristowe thought the “writing was on the wall”, because he knew about the undercover police operation and what had been found on execution of the search warrant.

14    Mr Bristowe’s counsel took the Court to the material which was before the Tribunal which could be seen as relevant to the Tribunal’s reasoning at [56].

15    The New South Wales Police “Facts Sheet” set out the asserted facts relevant to various alleged offences, including a number of supplies of Methylenedioxy-Methylamphetamine (MDMA). The Facts Sheet explained that the police had “monitored and recorded” a number of supplies of MDMA made by Mr Bristowe on various occasions between 7 June 2018 and 17 July 2018, for which he had received substantial sums of money. The Facts Sheet stated that Mr Bristowe’s supplies of MDMA were seized (presumably from the recipients) and later analysed. The Facts Sheet did not suggest that Mr Bristowe knew about the undercover police operation or that he had been told his supplies had been “monitored and recorded” or that the MDMA he had supplied had been seized and later tested. The Facts Sheet includes:

About 8.10am on Thursday the 19th July, 2018 police attended 6 Bobuck Place St Helens Park. Upon arrival, police knocked on the front door. Accused BRISTOWE answered the front door and engaged in a conversation with police. At this time, police complied with the Law Enforcement Powers and Responsibilities Act, 2002 arresting and cautioning the accused BRISTOWE. At this time, the accused BRISTOWE was notified of a search warrant which was issued at Campbelltown Local Court on Wednesday the 18th July, 2018. The occupiers notice was served on him.

A short time later, the accused was conveyed back to Campbelltown Police Station and introduced· to the Custody Manager. The accused participated in an electronic recorded interview number R0542645. During the interview the accused was asked a number of questions in relation to each offence. The accused made full admissions to supplying a purchaser Methylenedioxy-Methylamphetamine (MDMA) in St Helens Park and Burwood on the stated dates.

… In relation to the search warrant, police located $1000.00 in Australian currency in a shoe in the accused wardrobe. Inside another shoe, police located 10 grams of green vegetable matter believed to be cannabis. Police also located $150.00 in Australian currency on a desk in his bedroom. In total, police located $1150.00 in Australian currency which police will allege is from proceeds of crime.

16    Counsel also took the Court to Mr Bristowe’s s 501CA representations and the transcripts of the cross-examination of Mr Bristowe in the two AAT proceedings. None of this material suggested that, at the time of making the early admissions, Mr Bristowe was aware: (a) that there had been an undercover police operation; or (b) of what had been found on execution of the search warrant. Nor was it put to Mr Bristowe by the Tribunal or in cross-examination that his early admissions were made because he considered the “writing was on the wall”, whether as a result of his knowledge of the police operation or what had been found at his residence on execution of the search warrant, or otherwise.

17    The Tribunal’s finding of fact that the early admissions made by Mr Bristowe were, more probably than not, in part made because of a perception on the part of Mr Bristowe that the “writing was on the wall” is a finding of fact made through a process of inference, there being no direct evidence establishing his state of mind in this respect.

18    In Carr v Baker (1936) 36 SR (NSW) 301 at 306, Jordan CJ observed that “[t]he existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists”. An inference is a finding of fact which the drawer of the inference bases on the existence of some other fact or facts – see: G v H [1994] HCA 48; 181 CLR 387 at 390 (Brennan and McHugh JJ). The happening of an event or the existence of a state of affairs can be found to exist, on the balance of probabilities, on the basis of evidence of other facts the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs existed: Henderson v State of Queensland [2014] HCA 52; 255 CLR 1 at [89] (Gageler J).

19    An inference cannot be drawn unless there are objective facts from which to draw the inference: Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 at 169-170; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [87] (Spigelman CJ). Finding a fact through a process of inference can involve combining facts like strands in a cable or links in a chain: Seltsam at [91]. An inference can be drawn on the basis of circumstantial evidence: Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 at [88] per Jagot J; Seltsam at [90]. The inference must be more than mere conjecture or speculation; the decision-maker must reach a positive satisfaction, on the requisite standard (here, the balance of probabilities), that the inferred fact exists. Both Jordan CJ in Carr, and Spigelman CJ in in Seltsam at [84], referred to Jones v Great Western Railway Co (1930) 47 TLR 39 at 45, in which Lord Macmillan stated:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.

20    In other words, the facts proved must give rise to a reasonable and definite inference, and not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel [1959] HCA 9; 101 CLR 298 at 304-305 (Dixon CJ); Trustees of the Property of Cummins (A Bankrupt) v Cummins [2006] HCA 6; 227 CLR 278 at [34].

21    The material before the Tribunal directly established the following facts:

    Mr Bristowe had committed a number of drug-related offences.

    The police attended Mr Bristowe’s residence, had a conversation with him, cautioned him and arrested him.

    The police notified Mr Bristowe that they had obtained from the Campbelltown Local Court a search warrant in respect of his residence.

    Shortly after his arrest, the police took Mr Bristowe to the Campbelltown Police Station where he participated in a police interview.

    Mr Bristowe was asked questions in relation to the offences during the interview and he “made full admissions to supplying [MDMA] in St Helens Park and Burwood on the stated dates”.

22    The Minister referred to similar facts as just set out above and submitted that it was rational to infer from these facts that, as a matter of objective fact, the “writing was on the wall”. The difficulty with this submission is that:

(a)    properly understood, the Tribunal’s inference was not that objectively the writing was on the wall, but that Mr Bristowe (subjectively) thought the writing was on the wall and that was a reason for his early admissions – see: [12(2)(c)] and [13] above; and

(b)    the Tribunal did not infer on the basis of the facts set out at [21] above that Mr Bristowe thought the writing was on the wall; rather, the Tribunal inferred that Mr Bristowe thought the writing was on the wall at the time he made the admissions because the Tribunal inferred that, at that time, Mr Bristowe knew about:

(i)    the undercover police operation; and

(ii)    what had been found on execution of the warrant.

23    As to the undercover police operation, the material before the Tribunal did not suggest that Mr Bristowe knew of any undercover police operation at the time of making the early admissions. The Minister did not refer to any material which would suggest that inference. After his arrest, Mr Bristowe was questioned about the various offences. The offences comprised a substantial number of sales of MDMA in substantial quantities for substantial sums of money. It may have been obvious to Mr Bristowe from the questioning at the time the admissions were made that the police knew a substantial amount about his activities, but the inference that he knew that there had been an undercover police operation, in which he was “recorded” supplying drugs and in which the drugs he supplied were later seized and analysed, was not an inference which was obvious and natural on the material before the Tribunal. An inference that Mr Bristowe thought the writing was on the wall is more obvious and natural if Mr Bristowe knew the police had “monitored and recorded” his drug supplies and also seized and analysed the drugs which he had supplied. The Tribunal did not expressly state that it inferred that Mr Bristowe knew there had been an undercover police operation, or the basis on which it drew that inference. The Minister did not seek to support the availability of such an inference. It may be that the Tribunal simply assumed that Mr Bristowe knew about the undercover police operation without considering whether that was an inference which was in fact available from the material.

24    As to the things which had been found on execution of the search warrant, the direct facts did not establish that Mr Bristowe knew what had been found on the search at the time of making the admissions. That conclusion could only be reached through a process of inference. It is not known when the search commenced or ended. It is not apparent from the material that Mr Bristowe was told during the police interview about what had been found during the search. The search may not have commenced or been completed at the time the admissions were made by Mr Bristowe. Further, what was found was not significant in terms of implicating Mr Bristowe in the relevant drug supply offences to which he admitted. MDMA was not located during the search of Mr Bristowe’s property. The search revealed $1000 in one shoe (assumed to be proceeds of crime), a further $150 and 10 grams of a substance was found in another shoe (assumed to be cannabis). It is difficult to see that the finding of cash and cannabis was something which would make Mr Bristowe think the “writing was on the wall” in respect of the offences to which Mr Bristowe admitted, which included supplies of substantial quantities of MDMA. It may be that the Tribunal simply assumed that Mr Bristowe knew what was found at the time he made the admissions without considering whether that was an inference which was in fact available from the material. Further, the Tribunal’s reliance on what was found during the search in inferring that Mr Bristowe must have thought the writing was on the wall when he made his admissions suggests a misconception as to what was found during the search.

25    The inference which the Tribunal drew – that Mr Bristowe thought the writing was on the wall at the time of making the early admissions – was not an obvious or natural inference to draw from the two matters the Tribunal referred to as giving rise to the inference. It is no answer to say that a different decision-maker could have reached an equivalent finding of fact through a different process of inference or reasoning. Judicial review is concerned with the question whether the decision-maker stays within the limits of the decision-making authority conferred by the statute: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [29]. If a decision-maker is shown to have exceeded the limits of the decision-making authority, it is no answer to a conclusion of jurisdictional error to say that a different decision-maker could have reached the same conclusion in a lawful way. In the circumstances, procedural fairness required the Tribunal to provide Mr Bristowe an opportunity to respond before the finding was made.

26    It may be accepted that procedural fairness does not require a decision-maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision: SZBEL at [48], citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9]; Viane at [32].

27    Procedural fairness does, however, require a person to be alerted to a proposed finding of fact, reached by a process of inference, when the finding is not an obvious or natural evaluation of the material and relates to a matter on which the decision is likely to turn. The question whether Mr Bristowe was likely to reoffend was of central importance to the decision. The inference drawn by the Tribunal was critical in attaching less weight to what was otherwise regarded as a matter in Mr Bristowe’s favour.

28    The Minister properly accepted that, if there was a denial of procedural fairness in the way contended, then it was material to the outcome in the sense that there was a possibility of a different outcome. If it had been put to Mr Bristowe that he thought “the writing was on the wall” because he knew about the undercover police operation and what had been found on execution of the search warrant, and that was in part the reason he made the admissions, then Mr Bristowe may have given evidence to the effect that he did not know of either matter at the time he made the admissions. If the Tribunal had concluded that Mr Bristowe’s early admissions were motivated only by remorse, and not partly for the reason that he thought the writing was on the wall, then more weight may have been given to Mr Bristowe’s remorse and he may have been perceived to be less likely to reoffend than the Tribunal otherwise concluded. When it came to weighing the various factors for and against revocation of the visa cancellation, the merits might have been assessed as favouring revocation.

29    It follows that Ground 1 is made out.

Ground 2

30    The Tribunal addressed Ms Yoxall’s evidence from [60] of its reasons. This included:

[60]     Lastly, I need to consider the expert evidence of Dr Yoxall who is a psychologist who prepared a report dated 16 April 2020 that was directed to a consideration of Mr Bristowe’s risk of re-offending. Dr Yoxall applied the Level of Service Inventory – Revised (LSI – R) which has as its ‘primary goal’ the identification of ‘dynamic risk/needs variables that can be potentially changed so as to reduce the risk of reoffending’. As its name suggests the inventory is directed to determining ‘the level of service’ required for an offender rather than the risk of reoffending for the purpose of an application like this one. Nonetheless it is often used to assess the risk of reoffending with higher scores being ‘indicative of those offenders with increased risk of re-offending and increased need for intensive intervention’ so that it offers some assistance in determining the likelihood of reoffending for present purposes.

[61]    Dr Yoxall said in her written report:

On review of Mr Bristowe (sic) records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced. His score on the LSI – R was aa (10.8th %ile) and is related to static (historical and unchangeable) risk factors, dynamic (changeable risk factors including a history of Alcohol misuse, North American norms are commonly used in Australia for this measure. A score below 13 indicates a low risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 11.7% who scored in this range reoffended (and were reincarcerated) within 12 months.

[62]     Dr Yoxall in her oral evidence said that she had made some arithmetic errors in her report such that Mr Bristowe’s score should have been ‘at a percentile of 43.9, which means that rather than 89 per cent of individuals scoring above him in the normative sample around 56 per cent scored higher than him’. From this it followed that ‘it moves him into the category just on the cusp of moderate of low risk – of low moderate risk to moderate risk’. Fairly viewed that was Dr Yoxall’s opinion about the risk of Mr Bristowe reoffending.

[63]     Dr Yoxall made a number of findings at the ocnclusion of her report that were relevant to the assessment of Mr Bristow’s (sic) risk of offending. She said:

3.     In my view Mr Bristowe’s offending history is inextricably entwined with his substance misuse. As the severity of his dependence increased, so too did the severity of his offending he engaged in, primarily because the key motivation for the offending was access to money or drugs for personal use.

4.     Mr Bristowe has now been in a controlled environment (remand, prison, and detention) for 21 months, and as a result of this, has been abstinent for a sustained period of time.

5.     On assessment Mr Bristowe appeared to present with genuine remorse and he appears to accept responsibility for his offending. It would appear that his period of time in a controlled environment has been of benefit to him in that he has developed increased personal insight.

6.     However to date Mr Bristowe has not engaged in evidence based drug rehabilitation, nor has he engaged in any substantial learning, either from a vocational perspective or from a personal development perspective. A key reason for this is limited access to same from prison or detention.

7.     At the current time Mr Bristowe’s risk of reoffending, according to established methods of prediction, is low. This is primarily because he had stable upbringing, he is still young and his offending occurred in the context of a methamphetamine dependence, which is now in remission (albeit a controlled environment) and can be treated[.]

8.     Even though the risk of re-offending is low it is directly linked, and heavily dependent upon his ability to maintain remission from drug dependence, if and when he returns to the community. To this end, it is my view that Mr Bristowe requires the following rehabilitation and intervention:

a.     A residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse including addressing of life skill deficits identified above;

b.     Vocational upskilling to increase likelihood of obtaining and maintaining employment. This may include completion of Grade 10 education and industry based qualifications;

c.     Continued support, monitoring and supervision, either informal (e.g. family members or more formal) (The underlining is my own)

[64]     As I have already noted Dr Yoxall said in her oral evidence that she now considered the risk to be ‘low to moderate/moderate’ rather than ‘low’ in light of her calculations and the actual outcome score. This means that when she refers to the ‘low risk’ of reoffending in her report it necessarily needs to be modified to ‘of low moderate risk to moderate risk’.

[65]     Dr Yoxall emphasised in her oral evidence:

… but I still am of the very firm view that his risk of re-offending is inextricably linked to his risk of relapse to drug dependence and that rehabilitation – successful rehabilitation, if that is achieved, would result in a low risk of reoffending but, to the contrary, a relapse to drug dependence would result in a significant increase in the risk of reoffending (The underlining is my own)

[66]    Dr Yoxall explained that her preference or recommendation for rehabilitation for Mr Bristowe was a residential drug rehabilitation programme because it was her opinion ‘that the residential drug rehabilitation program is the best chance of success for somebody with his range of rehabilitation needs’ or ‘more likelihood of success’. Notwithstanding her preference she indicated that other forms of formal rehabilitation such as ‘outpatient programs, day programs, one-on-one counselling group programs, all within various frameworks, evidence-based frameworks’ if engaged in and adhered to would reduce the risk of re-offending.

[67]    Dr Yoxall’s report and her oral evidence was not such that would allow a conclusion to be drawn that she considered time, even a long time, in a controlled environment such as in prison or in detention would be a substitute for rehabilitation. This is unsurprising given that the things she identified at paragraph eight in her summary and conclusions are fairly to be read as things that would equip Mr Bristowe to deal with his drug dependence in the community. Ideally rehabilitation intervention that would reduce Mr Bristowe’s risk of reoffending would require, in shorthand terms: treatment, training and support.

[68]    I accept Dr Yoxall’s opinion that Mr Bristowe’s risk of reoffending is in the ‘low moderate risk to moderate’ range. I also accept her evidence that should he resume his drug dependence that risk will be increased, and that engagement and adherence to rehabilitation will see his risk of reoffending reduced.

[69]    There are things that point in favour of Mr Bristowe engaging in rehabilitation: he has said he will do so, he attended a couple of Narcotics Anonymous sessions whilst in prison (although his evidence suggests they were of limited value), he engaged in a couple of counselling sessions whilst in detention in April 2020, and he has been deemed ‘appropriate for treatment’ by a reputable drug rehabilitation service. He has also undertaken some online courses whilst in detention in Depression Management, Drug and Alcohol Abuse, Stress Management and Workplace Drug Use which, apart from what he appears to have learned from those courses, also demonstrate some commitment to rehabilitation, although it is unclear that they would satisfy the kind of rehabilitation programs that Dr Yoxall had in mind.

[70]    I am required to have regard to the ‘rehabilitation achieved by the time of decision’. Mr Bristowe has undertaken the courses I have referred to. His statement recounts some of the details about those courses. Mr Bristowe outlined in his evidence what the courses covered. I cannot form any firm conclusion about what those courses achieved for Mr Bristowe, but they demonstrate something of a commitment by Mr Bristowe to rehabilitation, albeit limited because of the closeted environment of detention,.

[71]    Nonetheless it is not possible to make any firm or definite assessment about his likely engagement, continued engagement, adherence and responsiveness to rehabilitation such that it might ultimately be successful such that I would assess the risk as having been significantly reduced. A great deal depends on significant unknown factors about which I am not prepared to speculate. Dr Yoxall had possession of very many of the facts that are available to me and still needed to qualify her opinion by the words ‘if that is achieved’. The passage of time and the things that have happened since do not put me in a much better position to assess that contingency albeit that there are indications that are favourable. I will take those indications into account but given that they involve some degree of speculation about the future I am unable to give them significant weight.

31    The Tribunal’s reasons at [67] contain the Tribunal’s interpretation of Ms Yoxall’s evidence. As the Tribunal had recorded at [63] (in paragraph 4 of the quote at [63]), Ms Yoxall had observed that Mr Bristowe had been in a controlled environment for 21 months as at the time of her report and had been abstinent for that period of time. She considered this had been of benefit to Mr Bristowe in that he had developed increased personal insight – see: paragraph 5 of the quote at [63]. Ms Yoxall then stated: “However to date Mr Bristowe has not engaged in evidence based drug rehabilitation”. She noted that the key reason for this was limited access by reason of being in prison or detention – see: paragraph 6 of the quote. At paragraph 8 of the quote, Ms Yoxall expressed the view that Mr Bristowe required the rehabilitation and intervention there identified. Ms Yoxall was stating that, notwithstanding abstinence from drugs by reason of being in a controlled environment for a period of 21 months, Mr Bristowe required evidence based drug rehabilitation and other intervention.

32    The Tribunal’s statement at [67] is unremarkable. It is a correct summary of Ms Yoxall’s evidence. If the Tribunal had come to the opposite conclusion it would have been inconsistent with Ms Yoxall’s evidence.

33    The Tribunal was not required to inform Mr Bristowe of its understanding of Ms Yoxall’s evidence, as reflected in [67] of its reasons, in order to afford procedural fairness to him. It follows that Ground 2 must be dismissed.

CONCLUSION

34    The application for judicial review should be allowed on the basis of Ground 1.

Associate:

Dated:    14 June 2022