Federal Court of Australia

De Silva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 831

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondents’ costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, Neranjan Agrajith Kalubuth De Silva, applies for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal), the second respondent, on 22 June 2021, which affirmed a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), the first respondent, on 28 March 2021, to refuse, under s 501(1) of the Migration Act 1958 (Cth) (the Act), the applicant’s application for a Partner (Temporary) (Class UK) visa.

2    This applicant relies on the amended originating application dated 24 February 2022 and the affidavit of Sai Priya Sivalohan affirmed 24 February 2022.

3    For the reasons below, the application is dismissed.

Background

4    The applicant is a 34-year-old male who was born in Colombo, Sri Lanka on 28 September 1987. The applicant first arrived in Australia on 8 February 2007 on a Student (Temporary) (Class TU) visa.

5    On 27 April 2011, the applicant was found guilty of unauthorised dealing with shop goods, resulting in a fine. This offence was followed by 36 traffic offences, all of which resulted in fines and suspensions and one disqualification of the applicant’s licence.

6    On 18 October 2016, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820)/Partner (Residence (Class BS) (Subclass 801) visa which was refused by the Minister’s Department on 9 December 2016. The applicant sought review of that decision by the Tribunal, and on 20 March 2017 the matter was remitted to the Department with a direction that the applicant met the requirements of the visa.

7    On 27 June 2018, the applicant was convicted of rape.

8    His victim gave evidence at trial, but he did not. The applicant was initially sentenced to 24 months’ imprisonment, suspended after 8 months. An appeal against conviction was unsuccessful in the Queensland Court of Criminal Appeal, but the applicant succeeded in having his sentence reduced by 6 months, having regard to his immigration detention: R v De Silva [2018] QCA 274. The applicant sought and was granted special leave to appeal to the High Court. The High Court dismissed his appeal on 13 December 2019: De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57.

9    As a consequence of his rape conviction, on 4 July 2018, the applicant’s partner visa application was referred for consideration under s 501 of the Act. On 31 March 2021, a delegate of the Minister refused the application, and on 8 April 2021, the applicant sought review of that decision in the Tribunal.

Tribunal decision

10    The Tribunal affirmed the delegate’s decision to refuse the applicant’s partner visa.

11    The relevant provision for the Tribunal’s consideration was s 501CA(4) of the Act which provides:

501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

12    The Tribunal found that the applicant did not pass the character test in s 501CA(4)(b)(i) because, pursuant to the definition in s 501(7), he had a “substantial criminal record” having been sentenced to a term of imprisonment of 12 months or more: at [4] and [21].

13    Therefore, the Tribunal concluded that the sole issue for its determination was whether it could be satisfied that there was another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: at [5].

Primary considerations

14    The Tribunal noted that in exercising the discretion, it must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations. These include the protection of the Australian community (Primary Consideration 1), family violence committed by the non-citizen (Primary Consideration 2); the best interests of minor children in Australia (Primary Consideration 3); and the expectations of the Australian community (Primary Consideration 4).

15    First, the Tribunal considered the protection of the Australian community: at [23]-[69]. In relation to this consideration, the Tribunal at [24] noted that two factors were relevant: (i) the nature and seriousness of the applicant’s conduct; and (ii) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

16    With respect to the first factor, the Tribunal determined that, objectively, the sexual assault of digital penetration, referred to in Queensland as the offence of rape, is properly regarded as a particularly serious offence: at [32]. The Tribunal further considered the circumstances in which the applicant took advantage of the intoxicated victim and concluded the circumstances made the offence subjectively serious: at [32] and [66]. It was particularly concerning to the Tribunal that the applicant “refused to accept responsibility for his offending or indeed, even accept that he offended at all”: at [33]. The applicant’s lack of remorse and refusal to admit his offending was an “important consideration” in considering the seriousness of offending: at [67]. The Tribunal also considered the applicant’s past offences of unauthorised dealing with shop goods and his numerous traffic offences: at [29] and [30].

17    In its conclusion with respect to the first factor, the Tribunal was of the view that the offending was at a level of such seriousness that it must be weighed extremely heavily against the applicant: at [68].

18    With respect to the second factor, the Tribunal noted at [40] that “[t]he question of future risk of the Applicant offending assumed enormous importance in these proceedings”. In assessing the future risk, the Tribunal took into account: that the applicant had a strong motivation not to offend in the future because such offending would carry with it the certainty of the loss of his visa (at [38]); that the applicant had not undertaken any rehabilitation courses (at [39] and [43]); that the applicant’s family and associates gave evidence attesting to his good character and that there was no reason to disbelieve their opinions, but, importantly, that they believed the applicant was not guilty of the offence of rape (at [40] and [41]); that the applicant’s time spent in prison and immigration detention was exemplary (at [42]); that the applicant had sworn he was a “changed person” (at [44]); that the offence of rape was out of character, but that the applicant was not a first time offender (at [45]); and that the period spent in prison and immigration detention operated as a “wake-up call” for the applicant (at [51]).

19    The Tribunal considered the psychologist’s report and her evidence at [55]-[58]:

[55]    The psychologist administered a test instrument described as a risk assessment instrument and scored the Applicant according to that instrument. The Applicant’s representative relied heavily on the score which suggested a virtual negligible risk of offending. The ultimate submission made by the Applicant’s representative was that the Applicant presented an acceptable risk, at the highest, and sought to persuade the Tribunal that, on the evidence, future offending was effectively non-existent or extremely minimal. On much of the material, this submission is an attractive one.

[56]    Returning to the evidence and the report of the psychologist, although the psychologist said that the risk assessment was predicated on the basis that the Applicant had accepted his offending behaviour, the report given by the psychologist did not deal with the impact of the Applicant's refusal to accept that he had committed the offence of rape. The psychologist accepted that remorse was an important factor in the consideration of risk. However, when asked about the relevance to the question of risk of someone who would not admit the commission of the offence, the psychologist could only say that there were “too many different factors to take into account” and could not proffer any useful opinion as to the impact or effect overall as to the question of risk.

[57]    Furthermore, it was quite apparent not only from the psychologist’s report but also from her evidence, that she personally harboured some doubts concerning whether the Applicant had actually committed the offence and in this way, the Tribunal was of the opinion that her report was flawed fundamentally by that partiality to the Applicant, siding with him as she appears to have done in his protestations of innocence.

[58]    The Tribunal is of the view that because of the last matter stated above and also because the psychologist was unable, or unwilling to calculate the effect of non-acceptance of criminal behaviour by the Applicant into the entirety of her expressed opinion, little weight should be attached to the opinions expressed by the psychologist in her report.

20    On the question of remorse, to the extent that there is a direct relationship between lack of remorse and the potential for future offending, the Tribunal took into account that the applicant was “absolutely unrepentant” (at [62]), with that remorse flowing from the applicant making it “perfectly clear in evidence that he did not accept the commission of the offence” (at [60]).

21    In its conclusion with respect to the second factor, the Tribunal concluded at [64]-[65] as follows:

[64]    There is a great deal of evidence which is favourable to the Applicant on the question of risk of future offending, some of which has been dealt with above. What overwhelms and neutralises any acceptable evidence of risk favourable to the Applicant, in this case, however, is the refusal by the Applicant to accept that he offended. The magnitude of that refusal cannot be underestimated, in the Tribunal's opinion, and in the end result, whatever can be said of the Applicant’s good behaviour, rehabilitation, good intentions and positive expressions by those who know him, including family, is entirely negated by his refusal to accept responsibility for his offending.

[65]    In the result, the Tribunal has come to the conclusion that it is not satisfied that the Applicant is not a risk of future offending although it is impossible to place any particular standard on that apart from the expression which has been set out above.

22    Second, the Tribunal turned to the consideration of family violence committed by the non-citizen and concluded that there was no evidence to indicate its relevance in the matter: at [74].

23    Third, the Tribunal considered the best interests of minor children in Australia: at [75]-[82]. The applicant has three nieces and nephews. The Tribunal noted that although there are parental figures in the lives of those minor children, it is clearly in the best interests of those children that their uncle remain in Australia and, to that extent, the consideration was weighed in the applicant’s favour: at [82].

24    Fourth, the Tribunal considered the expectations of the Australian community: at [83]-[91]. The Tribunal concluded that this consideration bore real weight against the applicant, paying particular regard to the serious sexual offence committed by the applicant, and taking into account the applicant’s prior history of offences: at [89]-[91].

Other considerations

25    The Tribunal also considered the other relevant considerations listed in Direction No. 90, including the extent of impediments if the applicant were removed, and the applicant’s links to the Australian community. The Tribunal determined that there was no evidence to make relevant the considerations of international non-refoulement obligations, and the impact on victims: at [94] and [101].

26    With respect to the extent of impediments if the applicant were removed from Australia, the Tribunal considered the impact on the applicant’s business, his family, his difficulties acclimatising back to Sri Lanka, and his partner, who would have to leave the care of her aged and unwell mother: at [96] to [99]. The Tribunal concluded at [99] that this consideration weighed in the applicant’s favour.

27    With respect to the applicant’s links to the Australian community, the Tribunal considered, in accordance with Direction No. 90, the strength, nature and duration of the applicant’s ties to Australia, and any impact on Australian business interests if the applicant were removed. The Tribunal attached weight to the applicant having resided in Australia since he was a young adult of 19 years of age, the applicant’s family and partner living in Australia, the applicant and his partner both caring for the partner’s aged and unwell mother, the applicant’s charitable work and sporting activities in Australia, and the applicant’s business interests in Australia, concluding that these matters weighed heavily in the applicant’s favour: at [103]-[109]. The Tribunal noted at [110] that the loss of the applicant’s business skills if he were deported “which is both personal to the applicant and affects his fiancée” weighed in his favour.

Conclusion

28    After weighing considerations in favour of and against the applicant, the Tribunal concluded at [111] as follows:

Despite the many factors and considerations which weigh in the Applicant's favour and the considerable weight given to those factors and considerations, these are greatly outweighed, to the Tribunal's mind, by the magnitude and seriousness of the commission of the sexual offence for which the Applicant was convicted, by real concerns as to the Applicant’s refusal to accept responsibility for that offence, and the consequences which flow in terms of rehabilitation and risk assessment of the Applicant for future criminal conduct of a similar sexual kind. The expectations of the Australian community, in the Tribunal’s view, also weigh heavily against the Applicant.

Consideration

29    The applicant alleges five grounds of appeal.

30    The five grounds contained in the applicant’s amended originating application dated 24 February 2022 are as follows:

1.    The Tribunal acted in a legally unreasonable way in rejecting the evidence of the forensic psychologist, Kris North.

2.    The Tribunal acted in a legally unreasonable way in its consideration of the issue of the applicant’s remorse. This constituted jurisdictional error.

3.    The Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s evidence in relation to future risk. This constituted jurisdictional error.

4.    The Tribunal failed to comply with Direction No. 90 (and thus contravened s 499 of the Migration Act 1958 (Cth)) and/or acted in a legally unreasonable way in taking into account the applicant’s alleged lack of remorse in assessing the seriousness of the applicant’s offending. This constituted jurisdictional error.

5.    The Tribunal failed to give proper, genuine and realistic consideration to the impact on the applicant’s partner of the refusal of his visa. This constituted jurisdictional error.

31    However, the applicant accepted that if he succeeded on ground 4 alone, what is alleged would not amount to a material error such as to found jurisdictional error.

Ground 1: It was legally unreasonable for the Tribunal to reject the evidence of Ms North

32    The applicant submitted that there was no evidential basis for the findings by the Tribunal that Ms North was “partial” to the applicant, had “sided with” him in relation to his protestations of innocence, and was “unwilling” to calculate the effect of non-acceptance of criminal behaviour by the applicant on her opinion. The applicant submitted that as a result, the Tribunal’s findings were legally unreasonable. It was submitted that although the Tribunal approaches the matter on the basis of the principles in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, Ms North was not required to do the same, and that she did not do so is not a reason to find she lacked impartiality.

33    The applicant’s submission is premised on the basis that the Tribunal was not entitled to “reject” the evidence of Ms North, in particular, the tests she performed.

34    It is appropriate to refer to the recent decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1, where the Full Court summarised the relevant principles in relation to an allegation of illogicality at [32]-[35] as follows:

[32]    The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at 3–6 [2]–[13]. See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at 170–172 [54]–[65].

[33]    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

[34]    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

35    It should be uncontroversial that the Tribunal’s task was to make its own assessment of the applicant’s likelihood of re-offending: see, for example, YKSB v Minister for Home Affairs [2020] FCA 476 at [45]; JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293 at [74]; SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [79]. It follows that the Tribunal was not obliged to accept the evidence of Ms North. Nothing said in Assistant Minister for Immigration & Border Protection v Splendido [2019] FCAFC 132 at [72] per Mortimer J (with whom Moshinsky J agreed), citing RJE v Secretary to the Dept of Justice [2008] VSCA 265 says otherwise. Indeed, in YKSB Mortimer J observed at [45]:

… The assessment of the level of risk posed by the applicant was a matter for the Tribunal. It could derive assistance from expert evidence but ultimately its task was to reach its own conclusion, which it did. …

36    Moreover, in so far as the applicant contended that the Tribunal “rejected” Ms North’s evidence, it is clear that the Tribunal did not say it gave no weight to the evidence, but rather at [58] concluded that “little” weight should be attached to the opinions expressed. It follows that the factual premise of this ground, that the evidence was rejected, is not established.

37    Ms North’s report commences with a summary at [4] which includes:

… Of relevance, it was noted that Mr. De Silva had continued to maintain his innocence, and that his support network also believed in his innocence despite his conviction. Despite this, my risk assessment did not take this into consideration and assessed Mr. De Silva as a Level II Below Average risk for sexual reoffending. He was also assessed as a low risk for general recidivism. (emphasis in original)

38    That said, the Tribunal’s assessment of Ms North was based not simply on her report but her oral evidence, where the Tribunal had an opportunity to assess her as a witness. Ms North’s report recorded at [38]:

It was noted that Mr De Silva’s maintenance of innocence was considered to represent a lack of remorse for his offence, or a failure to accept responsibility. Whilst a lack of remorse is potentially problematic in terms of future risk, the fact that Mr. De Silva had been adamant in maintaining his innocence throughout the matter was taken into consideration. It was noted that Mr. De Silva had continued to enjoy the support of his family and fiancé (including her family), all of whom believed he was innocent; and that he had appealed his conviction and sentence despite resulting financial hardship. Although outside of the scope of this report, Mr. De Silva identified inconsistencies in statements and a lack of evidence in his court proceedings, and the possibility of a wrongful conviction was thus considered as an explanation for his limited remorse.

39    Ms North accepts that what is recorded at the conclusion of the paragraph is outside the scope of the report. She acknowledges, however, that given what the applicant has said, there is a possibility that he is innocent.

40    The tests undertaken by Ms North do not take into account a person proclaiming their innocence. They do not take into account a denial or acceptance of a conviction. In her evidence in the Tribunal, Ms North accepted that the position reflected in [38] of her report was based on “facts that came up in the interview that caused [her] to doubt in [her] mind” the guilt of the applicant. That is why she said she took the applicant’s maintenance of innocence into account when considering his lack of remorse. Ms North accepted that remorse is relevant and that its absence has been indicated as a possible risk factor for future offending. However, when asked by the Tribunal about the applicant maintaining his innocence and the effect that may have, Ms North’s answer provided the Tribunal with reasons she took to be indicators of his innocence in this case (in contrast to the position that she accepted that people charged with sex offences often do not accept responsibility). When asked whether, if it was demonstrated the applicant had committed the offence, it would change her view as to the likely risk of re-offending, Ms North replied: “If I was – if I was certain, it could. However the actual risk assessment wouldn’t change because … the facts were taken as facts when scoring the instruments.” When asked how the demonstrated lack of remorse would affect the risk assessment, Ms North responded that given the applicant’s denial, it made it a difficult question to answer. I note that the Tribunal did put the proposition to Ms North that her report may be undermined by her attitude indicating the applicant had not committed the offence.

41    It is in that context that the applicant’s reliance on Ms North’s statements that she could not say whether he was guilty or innocent must be considered.

42    It was open to the Tribunal to conclude that Ms North did not adequately respond to any question on the effect that lack of remorse could have on the likelihood of re-offending. Rather, when asked, she proffered reasons for her doubts about his guilt. Ms North never answered the questions on the basis that the applicant’s claim was a false denial of guilt, which was the premise of the questions. Ms North could have, but did not, provide answers on either basis. The applicant has not established that there is no evidential basis for the Tribunal’s assessment of Ms North.

43    The applicant has not established that the Tribunal’s findings in respect to ground 1 are legally unreasonable.

Ground 2: The Tribunal acted in a legally unreasonable way in its consideration of the applicant’s remorse

Ground 3: The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s evidence in relation to future risk

44    These grounds were addressed together, and are based on the Tribunal’s conclusion at [64].

45    It was submitted that in its consideration of the issue of remorse, the Tribunal acted in a legally unreasonable way for six reasons. First, the Tribunal’s approach sets up the need for a visa applicant to admit and express remorse for his or her offending as a mandatory pre-requisite for a person to demonstrate that they do not pose an unacceptable risk of re-offending in the future, and there is no such mandatory pre-requisite in Direction No. 90. Second, logic and common sense do not dictate that the mere fact that a person continues to deny that he or she committed an offence means that he or she poses an unacceptable risk of committing a similar offence in the future. Third, in assessing the risk of re-offending, a decision-maker is required to look at the circumstances of the underlying offence, and whether those circumstances are likely to be repeated, which has nothing to do with whether the person admits the offence. Fourth, even if a person admits an offence and expresses remorse, this does not mean that such expression of remorse is to be accepted. The Tribunal’s approach, the applicant submits, appears to be premised on an assumption that someone who admits an offence and expresses remorse poses less of a risk than a person who does not admit an offence. Fifth, even where the person admits the offence, but does not express remorse, this does not mean that they pose a risk of re-offending, citing Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 (Lam). It was submitted that, contrary to the Tribunal’s conclusion, Lam was not distinguishable. Sixth, it is not uncommon for tribunals to need to grapple with the future risk posed by a person who does not admit the underlying offending. There is no rule that a failure to admit the offending means that future risk cannot be ruled out, giving Ng v Health Care Complaints Commission [2018] NSWCATOD 105 (Ng) as an example.

46    In oral submissions, the applicant focused on what he contended were various positive findings by the Tribunal. It was contended that in light of those findings, the conclusions as to remorse and future risk were unreasonable. These matters are particulars of the grounds of appeal.

47    As explained above, it is the Tribunal’s task to make its own assessment of the applicant’s likelihood of re-offending. I also note in that context that contrary to the applicant’s contention that the Tribunal placed no weight on Ms North’s evidence, the Tribunal did place some, albeit little, weight.

48    The applicant’s submission is based on findings which, read fairly and in context, are not necessarily as bold or clear as contended for by the applicant.

49    To take three examples. First, the finding that the offence was out of character. It is true that at [45] the Tribunal stated:

The learned Sentencing Judge and, it may be inferred, the Court of Appeal likewise, accepted that the offence of rape was out-of-character behaviour for the Applicant. …

50    However, the Tribunal went on to say:

… Whilst this is so, the Tribunal recognises the Applicant was not a first time offender, having committed the offence of shop stealing in 2011 and otherwise did not have an unblemished record with regards to his traffic history which self-demonstrated a worrying disregard for the rules and regulations relating to road users and drivers of motor vehicles. In fact, that history was lengthy and led to a disqualification of licence.

51    Notably, this comment was made in light of the prior observation at [30]:

The traffic offending history demonstrates that the Applicant persistently refused to obey the rules and regulations in relation to driving and furthermore, the traffic history itself demonstrates a lack of regard for the safety of other road users and the community in general.

52    Second, the finding that the period in prison and detention was a “wake-up call”. At [51]-[52] the Tribunal stated:

[51]    The Tribunal accepts that the period spent by the Applicant both in prison and in immigration detention has operated, to use the Applicant's own words ‘as a wake-up call’ and is, therefore, a factor which the Tribunal takes into account on the issue of rehabilitation in the Applicant's favour.

[52]    The Tribunal notes the following letter sent to the Presiding Magistrate who dealt with traffic infringements by the Applicant in 2016. The full text of the Applicant’s statement to the Magistrate is as follows:

I am writing to express my regret at actions regarding the matter before the court and provide indication of my attempts for restoration. There are no excuses for my actions and I accept full responsibility for what I have done.

I've worked hard for many years, through study and my career, and have never been in trouble with the police. I am a caring man, with a wonderful family and great friends whom look up to me. I would never want to be a bad influence on them, however I recognise I have been a bad role model through my conduct. I am embarrassed and regret what I have done. It was humiliating for me to tell my family and partner about this incident, and to see the look of disappointment on their faces.

I have since come to understand the impact upon my loved ones of my decision to drink drive and the danger in which I exposed myself and others to.

I realise that my behaviour was not acceptable and have since engaged with a private psychologist to address my stress with work and personal troubles which I believe to be a lead cause of drinking.

I understand the inflammatory role alcohol has played in my mismanagement of difficult situations and have remained abstinent since the incident and fully intend to maintain this.

I meet with my psychologist on a monthly basis to develop a better understanding of the approach I have taken in the past to manage my stress, and to develop more acceptable responses. I am confident that with this advice, I will be able to make better decisions and learn to control my impulses.

I wish to express my heartfelt remorse and request to consider alternatives to a custodial sentence for the reasons I expressed above. I am willing to accept reasonable alternatives that permit me to continue to develop my skills to ensure there is no risk of future incidents.

53    While the Tribunal accepted that the period spent by the applicant in prison and immigration detention operated as a “wake-up call”, and took that into account on the issue of rehabilitation, the Tribunal also noted the relevance of the identical nature of the sentiments before the Magistrate in 2016 and the submissions to the Tribunal in 2021, as well as the offence of rape being committed after these sentiments were expressed, at [53]:

The Tribunal notes the sentiments expressed by the Applicant in this letter and further notes that these are relevantly identical to the Applicant's submissions made in the present case. As to the question of rehabilitation, the Tribunal notes that following the expression of these sentiments, the Applicant went on to commit the serious offence of rape in 2018.

54    The traffic offences referred to occurred before the rape offence.

55    Third, the evidence of the applicant’s witnesses as to his change of attitude. That evidence is recited at [40]:

... All attested to his good character and the fact that they had noticed an enormous change in his attitude and effectively that he was unlikely ever to commit an offence in the future. There is no reason to disbelieve their genuine belief in the opinions expressed, particularly Miss Auty, the Applicant’s partner, who has had virtual daily contact with him and says that he is a changed person in manner and attitude. …

56    However, the Tribunal noted at [41] the following:

It is to be noted, however, that many of those who speak well of the Applicant, of the changes observed in him, his rehabilitation and the prospect of him never committing an offence in the future, also believe that he is not guilty of the offence of rape. This needs to be taken into account in an evaluation of their opinions.

57    In that context the Tribunal also noted at [50] that the protective factors relied on by the applicant, being his family who will be able to assist him, “were present prior to the commission of the offence and indeed also had no sway on him during the time he was committing the traffic offences”.

58    As can be seen in these examples, each of the bold statements relied on by the applicant which underpins his submission are qualified by the Tribunal. It is trite to observe that the Tribunal’s conclusion at [64] must be read in light of the reasoning that precedes it, and any complaint made of [64] must be considered in that context. The reasoning that precedes it also necessarily includes the objective nature of the offence and the subjective circumstances in which it was committed. Although the Tribunal recognised positive factors in the applicant’s favour, it placed great weight on his lack of remorse and its relevance to the risk of re-offending. On the facts of this case, the Tribunal concluded at [65], which is recited above, that it was not satisfied that the applicant is not at risk of future offending, although it was impossible to place any particular standard on it: and see [69]. In so far as the Tribunal was not so satisfied, I note that even on Ms North’s evidence, a risk of future offending was recognised (albeit her evidence was that it was low). I note also that these grounds of appeal do not challenge that factual conclusion as legally unreasonable, but rather the claim relates to the Tribunal allegedly acting in a legally unreasonable way in its consideration of remorse (or failing to give genuine consideration to the applicant’s claims).

59    The applicant accepted during his submissions that the Tribunal was entitled to take into account his lack of remorse in assessing the risk of future offending. The applicant did not challenge the Tribunal’s statement in [61] to the same effect. As the Tribunal explained at [36], the applicant’s refusal to accept responsibility for the offending is of concern to it as it reflects on the issue of rehabilitation and consequently on risk assessment: and see [111]. Despite the applicant’s submission to the contrary, in practical terms, the applicant’s issue is with the weight the Tribunal attached to the lack of remorse.

60    It cannot be said that the approach of the Tribunal was not open: see for example, Korentang v Minister for Immigration and Border Protection [2017] FCA 1008 at [39]; Donnelly v Minister for Immigration and Border Protection [2019] FCA 798 at [47].

61    It is important to recall that this is not a merits review, and it is not for this Court to determine whether it would have reached the same conclusion as the Tribunal, or whether it agrees with the Tribunal’s conclusion. Rather, the applicant must establish jurisdictional error. As the Court in Djokovic at [17] recently reiterated: “The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made against it”. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [65], citing inter alia, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ.

62    Although other decision-makers may have taken a different view of the weight to be given to remorse, weight is a matter for the Tribunal: see, for example, Korentang at [37]-[39].

63    I do not accept that the Tribunal treated the applicant’s lack of remorse as, or elevated it to, a mandatory factor. Rather, the conclusion does no more than reflect the Tribunal’s assessment of the facts of this case. It does not follow, as the applicant contends, that the discretion must be exercised against an applicant in every case where there is no remorse.

64    A premise of the applicant’s submissions on these grounds, although variously put, is that in assessing the evidence (including that of the applicant’s witnesses), the Tribunal was permitted to acknowledge the possibility of his innocence. In particular, it was contended that the applicant might not have expressed remorse by reason of him being innocent of the offence. It was said that the Tribunal was permitted to consider that a reason for the failure to express remorse was the applicant’s innocence.

65    A number of observations can be made in relation to this submission. First, the submission was put on the basis that while it was permissible for the Tribunal to take that possibility into account, that does not convert to a tribunal being required to take it into account. On the applicant’s submission there is a discretion. It cannot therefore be an error to fail to do so.

66    Second, the applicant provided no explanation for how the Tribunal was to take it into account. It is unclear how this submission sits with the applicant’s submission that a tribunal does not need to accept an applicant’s innocence to take the possibility of innocence into account. The logical consequence of the submission is that in every case where the applicant maintains innocence, the tribunal cannot consider the lack of remorse adversely to them, because the failure to express remorse may be explained on that basis. That approach dictates how a tribunal must assess what may be a relevant fact. It proceeds on the basis that the tribunal is required to accept the assertion of innocence by an applicant (for, if it were otherwise, the approach would require the Court to assess the guilt of the applicant). If the tribunal does not accept the assertion, the effect is that there is no factual basis to underpin the submission. That approach cannot be accepted.

67    Third, and importantly, the approach contended for is inconsistent with HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121. The submission impugns, for the purpose of the Tribunal deciding whether there is any other reason why the revocation should be revoked, the factual findings which underpin the conviction, which create the foundation for the exercise of power by the decision-maker. The applicant did not grapple with HZCP, and simply accepted that the Tribunal had to proceed on the basis that the facts were those facts which supported the conviction and sentence.

68    I note that the applicant during oral submissions complained that the Tribunal did not identify the precise offence for which the assessment of a risk of re-offending related. However, fairly read, it is apparent that the Tribunal was considering a sexual offence. That was the offence in issue. So much is made explicit in the Tribunal’s conclusion at [111] recited above at [28].

69    Finally, it is necessary to consider two authorities referred to by the applicant. Ng is a decision of the NSW Civil and Administrative Tribunal in a different factual context, namely, one where orders were to be made in respect to a doctor (and his ability to practice) in circumstances where he had committed an offence. Ng was no more than a consideration of the facts of the case, in very different circumstances, where HZCP has no application. It stands for no broader principle.

70    Significant reliance was placed on [50] of the 1999 decision of Lam. Mr Lam had been convicted for trafficking heroin and imprisoned for 7 years. He falsely claimed during the Tribunal proceedings not to remember any details of the offence: at [46]. Matthews J said at [50]:

… The applicant has little contrition or remorse about the circumstances of his offence. I suspect that he does not see it as meriting the type of punishment which he received. On the other hand, he has learnt, the hard way, that crime, particularly drug-related crime, does not pay. His seven years of incarceration, separated from his family and isolated in an environment where there was a constant language barrier has, I suspect, had a profound effect upon him. He may not be remorseful about his offence but I am certain that he regrets it, a regret which is born of pragmatism rather than contrition. But when one is looking to the future, the cause of the regret matters little. I very much doubt whether the applicant would be prepared to put himself at risk of further punishment along the lines that he has already endured. Moreover, the knowledge that he would face almost certain deportation if he committed another serious offence within the next 10 years (unless he obtains citizenship in the meantime) would operate as a powerful disincentive, at least during that period.

71    One might question the correctness of the statement that the “cause of the regret matters little”. Indeed, that statement is inconsistent with the acceptance that remorse is relevant to the issue of rehabilitation and the risk of re-offending. There is a distinction between regret for the consequences of a crime and remorse, which carries with it an acceptance of responsibility. It is the latter which bears on the issue of rehabilitation. In any event, that observation does not reflect anything more than a conclusion based on the facts of that case and stands for no broader principle. It does not compel the result contended for by the applicant.

72    I am not persuaded that the Tribunal acted legally unreasonably in the manner contended for by the applicant. In so far as the applicant contended that the Tribunal was obliged to give proper, genuine and realistic consideration to the applicant’s claims, I am not persuaded that the Tribunal failed to do so. The Tribunal’s reasons reflect that the applicant’s submissions were considered, but that in the circumstances, it did not give the submissions the weight the applicant contended for.

73    For the above reasons, the applicant has not established that the Tribunal acted legally unreasonably in its consideration of the issue of the applicant’s lack of remorse.

Ground 4: The Tribunal failed to comply with Direction No. 90 (and thus contravened s 499 of the Migration Act 1958 (Cth)) and/or acted in a legally unreasonable way in taking into account the applicant’s alleged lack of remorse in assessing the seriousness of the applicant’s offending

74    The applicant submitted that in assessing the seriousness of the offending, the Tribunal at [67] took into account the applicant’s lack of remorse and the fact that the applicant had refused to admit the offending. It was submitted that the seriousness of the offending should be determined only by reference to the circumstances of the offence.

75    The Tribunal at [36] concluded:

As to the assessment of risk of future offending, the Tribunal takes into account the protestations of innocence by the Applicant and his consequential refusal to accept responsibility for his criminal offending. That is of concern to the Tribunal in terms of real and demonstrated rehabilitation. Furthermore, such refusal to accept responsibility for the rape offence raises doubts, not only as to real rehabilitation but also the possibility of future offending.

76    The Tribunal addressed the risk of re-offending and the seriousness of the offending under the one heading. The seriousness of the offending was returned to at [66]. The impugned passage is at [67] where the Tribunal does import the applicant’s refusal to admit the offending into the assessment of the seriousness of the offending. The Tribunal considered the “lack of remorse and the fact that the [a]pplicant has refused to admit his offending” to be “an important consideration in the overall consideration of the seriousness of offending”.

77    I accept that this is an incorrect approach, as the relevant aspect of the Direction is directed to the nature of the offence and the circumstances in which it was committed. That an offender has refused to admit the offence cannot impact its seriousness, despite bearing on other relevant considerations.

78    This ground is established. However, as the applicant accepted, in the circumstances of this case, this error is not a material one, and therefore does not found jurisdictional error.

Ground 5: The Tribunal failed to give proper, genuine and realistic consideration to the impact of the refusal of the applicant’s visa on his partner

79    The applicant submitted that, if his visa were refused, his partner would need to relocate with him to Sri Lanka, and this would have a significant negative impact on her because, for example, she would consequently be deprived of her family and support network in a country where she does not speak the language. It was contended that although the Tribunal was evidently aware that the applicant’s partner would relocate to Sri Lanka with him if the visa were refused, as referred to in [97], it did not grapple with the impact of the applicant’s removal on his partner. The Tribunal thus failed to give proper, genuine and realistic consideration to this submission in its decision. On the applicant’s submission, this constituted jurisdictional error.

80    The Tribunal’s reasons do in fact refer to aspects of the impact on the applicant’s partner if he is removed, albeit not referring to all aspects of her evidence. It is apparent that the Tribunal was attuned to the fact that she would leave the country as well, that this would affect her and the applicant’s capacity to look after her aged and unwell mother, and that it would affect their business (of which she played a part). Although the Tribunal expressly referred to there being a likelihood that the applicant will suffer consequences relating to language and cultural matters given his absence from Sri Lanka for 14 years, and that social, medical and economic support will be less attractive by Australian standards, I accept the Tribunal did not refer to that aspect of the claim in respect to his partner. In considering the applicant’s business interests, the Tribunal also stated that it considered that the applicant’s business and management skills will be impacted by possible deportation, which also affects his partner.

81    The respondents accepted that there is no doubt that the applicant’s removal to Sri Lanka would be devastating for his family, his partner, and for him, but that that had been taken into account. It was submitted that the argument is, however, in reality, that more could have been said about it. The consequences of relocation in respect to his partner are separate to his. That said, where the applicant referred to the effect on him, he couched it in terms of the effect on both of them. The same can be said for his partner’s statement, which is also put in terms of the impact on both of them, for example, “if Neran and I move to Sri Lanka, we have no one … no family, no friends, no financial stability”.

82    It is appropriate to consider how the representations, submissions and evidence were addressed before the tribunal, not any subsequent recasting of the same: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [33], citing Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1]. The applicant was represented before the Tribunal. The statement of facts, issues and contentions filed by the applicant before the Tribunal does not identify as a separate claim or issue the impact of the applicant’s removal on his partner. Rather, the references to his partner are brief and in the context of considering the impediments to him if removed from Australia. The references to the applicant’s partner in the Tribunal’s reasons are consistent with the matters identified as relied on in that statement. Although during their evidence both the applicant and his partner gave evidence on the likely effect of them being removed, it was not a topic referred to in closing submissions advanced on the applicant’s behalf.

83    The Tribunal was obviously aware that the applicant’s partner would relocate to Sri Lanka with him if the visa was refused. The Tribunal was alert to the issues. It addressed the matter of the effect of removal in many respects. Although the applicant’s partner is not always expressly referred to, it is difficult to accept that the Tribunal considered the matters referred to in [80] above in respect to his partner, but not also the remaining matters.

84    I am not satisfied that the applicant has established that the Tribunal failed to give genuine consideration to the impact on the applicant’s partner.

85    In any event, even if I had found otherwise on this ground, the issue would be whether that failure amounted to jurisdictional error. In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 414 at [2]-[4]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the applicant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]. Given the factor was said not to have been considered, in the circumstances of this case, the applicant has not established that consideration of the factor to the extent contended for could realistically have resulted in the Tribunal making a different decision: see for example [111] (reflecting the Tribunal’s weighing of the considerations).

Conclusion

86    The application is dismissed with costs.

Associate:

Dated:    19 July 2022