Federal Court of Australia

Dayananda v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1050

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the application, fixed on a lump sum basis.

3.    On or before 4.00 pm AWST on 22 September 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Dr Dayananda, came to Australia from Sri Lanka in 2013. He worked at the Bunbury Hospital. He was convicted of an offence of sexual penetration of a patient at that hospital without her consent and sentenced to a term of 3 years in prison.

2    A delegate of the first respondent (Minister) cancelled Dr Dayananda's visa under s 501(3A) of the Migration Act 1958 (Cth). In accordance with s 501CA(3) of that Act, the Minister invited Dr Dayananda to make representations as to why the cancellation of the visa should be revoked. Dr Dayananda made those representations, but on 22 February 2021 a delegate of the Minister decided not to revoke the cancellation. Dr Dayananda sought review of that decision in the Administrative Appeals Tribunal. On 19 May 2021 the Tribunal affirmed the decision not to revoke the cancellation of the visa. Dr Dayananda now seeks judicial review of the Tribunal's decision.

3    For the following reasons the application will be dismissed.

Background

4    Dr Dayananda is 52 years old. He was 43 years old when he came to Australia. He has a wife and an adult daughter who lived in Australia with him. He is a qualified medical doctor and worked in that capacity in Australia. He was convicted of the offence of sexual penetration without consent on 12 June 2019. His registration as a medical practitioner was suspended soon after that, and evidence in this proceeding indicates that his medical registration has since been cancelled.

5    The sexual penetration offence is the only crime of which Dr Dayananda has been convicted in Australia. The circumstances of the offence, as appear from the sentencing remarks, are as follows. The victim of the offence is a woman who came to the Emergency Department of the Bunbury Hospital in September 2017. It appears that the visit was necessary because she had been assaulted by an ex-boyfriend. She remained in the hospital for two weeks because of an infection. Several doctors attended to her during that time. Her evidence, which the sentencing judge accepted, was that Dr Dayananda would come into her room, stroke her hair, make comments about showing her around Western Australia, and ask her personal questions, including about her Muslim religion.

6    The victim was discharged from the hospital but continued to get infections, and she had a wound that became very painful. She needed to go back to the hospital regularly to have the wound cleaned. During one of those visits, on 5 December 2017, she was alone in a cubicle with Dr Dayananda. While examining her, he slid his hand under her underwear, penetrated her vagina with his finger, and made a suggestive comment. She was able to put an end to the assault and left the hospital.

7    Three days after that, Dr Dayananda started contacting the victim using a mobile phone. She was living in a women's refuge at that point. Dr Dayananda called her on 8 December 2017 saying 'I'm the doctor from Bunbury Hospital'. It appears that she subsequently managed to have him identify himself in a text message, and in early January 2018 she complained to the police.

8    Dr Dayananda pleaded not guilty and a jury convicted him of the offence under s 325 of the Criminal Code (WA), sexual penetration without consent. The sentence of 3 years was to operate from the date of sentencing, 21 June 2019.

9    Dr Dayananda's Skilled Independent (Permanent) (Class SI) visa (subclass 189) was cancelled under s 501(3A) of the Migration Act on 9 January 2020. He was released on parole on 28 December 2020 and was immediately taken into immigration detention. The Court of Appeal of Western Australia refused him leave to appeal and dismissed his appeal against conviction on 29 January 2021. After his unsuccessful attempts to obtain revocation of the visa cancellation decision from the delegate and the Tribunal, Dr Dayananda was voluntarily removed to Sri Lanka. He appeared at the hearing of the matter by video-link.

The Tribunal's review

10    Dr Dayananda represented himself at the Tribunal hearing. He gave oral evidence and was cross examined by counsel for the Minister.

11    In its reasons for decision, the Tribunal summarised the legislative regime and said that it was required to apply a mandatory direction that the Minister had made under s 499(1) of the Migration Act, namely Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). It set out relevant sections and paragraphs of the direction.

12    The Tribunal found that Dr Dayananda did not pass the character test, so that its task under s 501CA(4)(b)(ii) of the Migration Act was to consider whether there was 'another reason' why the decision to cancel his visa should be revoked.

13    The Tribunal then proceeded to consider the first of four matters that are designated as primary considerations in Direction 90, namely the protection of the Australian community. It set out further provisions of Direction 90 which required it, in considering the nature and seriousness of Dr Dayananda's criminal offending, to have regard to the fact (stipulated in the direction) that certain types of crimes or conduct are viewed very seriously by the Australian government and the Australian community. Direction 90 listed these as including 'violent and/or sexual crimes' (para 8.1.1(1)(a)(i)) and crimes committed against 'vulnerable members of the community (such as the elderly and the disabled)' (para 8.1.1(1)(b)(ii)).

14    The Tribunal then set out an excerpt of the sentencing remarks of the District Court of Western Australia after Dr Dayananda was found guilty of the sexual penetration offence. Those remarks described the circumstances of the offence as summarised above. The Tribunal also set out the following extracts from the sentencing remarks:

Your offending was a serious example of this kind of offence and there are a number of aggravating factors. Most obviously is the gross breach of trust that you perpetrated on the victim. When a patient seeks the sanctuary of a hospital or a doctor when they are feeling unwell and vulnerable they do not expect to be taken advantage of …

and

… I accept that there are factors which place this offending towards the lower end of the scale. The touching on the day in question of her vagina, indeed the penetration of her vagina, was somewhat opportunistic and momentary in nature. The penetration was not of the vaginal canal and it is clearly not as serious as some examples of penetration that come before these courts.

15    The Tribunal then said (italics in original):

However, the legal principles that apply to sentencing are different to those that apply under the Migration Act and Direction No 90. A factor that may be mitigating in sentencing is not necessarily so under Direction No 90, which provides that certain offences such as 'violent and/or sexual crimes' are viewed very seriously. Thus, applying Direction No 90, the Tribunal finds that the Applicant's Sexual Penetration Offence should be viewed 'very seriously', even if it was characterised by the sentencing Judge as not as serious as some other examples of similar offending that comes before the District Court.

16    The Tribunal then referred to paragraph 8.1.1(1)(b)(ii) of Direction 90 concerning crimes against vulnerable members of the community, and quoted the following passages from the sentencing remarks:

The vulnerability of the victim in this case is a relevant consideration. She was particularly vulnerable because she herself had been the victim of domestic violence.

She was living in a refuge and by all accounts had fairly limited supports in the community. And what is worse is that you must have known all of these things because you had offered to show her around and it is difficult to resist the inference that you knew she was alone and living in a refuge and that you took advantage of her vulnerability.

I have read her victim impact statement and it is apparent that your offending has had a profound effect on her. She does speak of many unfortunate things that have happened to her, which of course have nothing to do with you, but that made her more vulnerable and the fact that you took advantage of her in those circumstances is an aggravating circumstance.

17    The Tribunal found that the vulnerability of the victim was a further indication of the seriousness of Dr Dayananda's offence.

18    The Tribunal then referred to the 3 year sentence given, as required by paragraph 8.1.1(1)(c) of Direction 90. It described it as significant and an indication of the serious nature of the offending, while acknowledging that the maximum penalty for the offence was 14 years.

19    After running through other matters which Direction 90 requires to be considered in connection with the seriousness of the offending, but which were not relevant in Dr Dayananda's case, the Tribunal reached the following conclusion (para 51):

Based on the analysis of each of the sub-paragraphs of paragraph 8.1.1(1) of Direction No 90 above, the Tribunal finds the nature and seriousness of the Applicant's Sexual Penetration Offence to be very serious. Although the Applicant has only been convicted of one offence, it was a serious offence against a vulnerable victim, committed when the Applicant was in a position of trust and for which the Applicant was sentenced to a custodial term of imprisonment. The Tribunal finds that paragraph 8.1.1(1) of Direction No 90, being the nature and seriousness of the conduct, weighs very strongly against the revocation of the Cancellation Decision.

20    The Tribunal then went on to consider the risk to the Australian community should Dr Dayananda commit further offences or engage in other serious conduct, as required by paragraphs 8.1(2)(b) and 8.1.2 of Direction 90. With respect to the nature of the harm (Direction 90 para 8.1.2(2)(a)), the Tribunal observed that sexual offending can negatively impact victims in many ways and referred to the victim impact statement in the case of Dr Dayananda's offence, in which the complainant described the serious effect of the offence on her. The Tribunal found that the nature of the harm that can be caused by sexual offending was very serious, so that any risk that it may be repeated was unacceptable.

21    The Tribunal then turned to consider the likelihood that Dr Dayananda would engage in further criminal or serious conduct if he was to remain in Australia (Direction 90 para 8.1.2(2)(b)). Various matters meant that he was at low risk of reoffending, including that he had only committed one offence, that he had no problems with drugs or alcohol, he had been assessed in prison as having a low risk of reoffending, and had a record of good behaviour in prison. He was granted parole (albeit he went immediately into immigration detention) and it appears the Parole Board had determined that if he was successful in his application for revocation of the cancellation of the visa, he would not present an unacceptable risk to the safety of the community. However one requirement of parole was that Dr Dayananda attend programmes and counselling as directed. The Tribunal thus commented on the significance of the grant of parole as proceeding on the basis that there was a low risk to the safety of the community that could be managed by supervision and monitoring along with parole conditions and treatment.

22    The Tribunal then considered the evidence of a clinical psychologist, Dr Phil Watts, who undertook a psychological assessment of Dr Dayananda and found no evidence of a personality disorder or significant evidence of psychological dysfunction. Dr Watts did find that Dr Dayananda 'tended to present himself in a consistently favourable light and as being relatively free of common shortcomings to which most individuals will admit'. The Tribunal also noted that Dr Watts was cross examined on that subject, as well as on the subject of remorse and accepting responsibility for the offence. The Tribunal described Dr Watts as saying that expressing remorse can indicate that an offender accepts responsibility and so is at a lower risk of reoffending, and as describing 'a kind of spectrum of remorse and accepting responsibility' (para 69).

23    Nevertheless, on the basis of the following matters, the Tribunal found that the evidence before it showed that Dr Dayananda had 'made minimal progress with remorse and accepting responsibility since his sentencing and his appeal'. The sentencing judge had described Dr Dayananda as 'completely devoid of any remorse' and said that he had denied his offending at trial and had lied in his evidence. The sentencing judge described him as lying through his teeth and as having tried to blame another doctor for his conduct. The Tribunal said that Dr Dayananda maintained a lack of remorse and did not accept responsibility at the time of his appeal against conviction for the offence. While he stated at the Tribunal hearing that he was remorseful and accepted what the complainant had said, the Tribunal found that this appeared to be 'part of an attempt to avoid discussing details of the offending'. It described Dr Dayananda's evidence before it as evasive and set out passages from cross examination where he sought to portray the offending as accidental rather than deliberate, and disputed other facts surrounding the offence.

24    The Tribunal described what were then Dr Dayananda's plans to find employment in the medical research field, but found that this 'may not be protective enough' as he could still find himself in a position of trust and responsibility as a medical researcher. The Tribunal noted that although Dr Watts had said that he considered the applicant 'no risk outside of the medical situation', he later clarified that in cross examination to concede that no one could ever be described as 'no risk'. The Tribunal then made the following findings (para 76):

The Tribunal acknowledges Dr Watts' expertise and accepts his assessment that the Applicant is a low risk of reoffending. The Tribunal nevertheless is concerned that the Applicant's evidence at the Tribunal hearing indicates that there was less remorse and acceptance of responsibility than was apparent to Dr Watts at the time of his assessment. Indeed, the Tribunal did not find the Applicant to be a truthful witness. He was evasive, sought to minimise his offending and continued to deny almost all established facts of the offending. It therefore appears to the Tribunal that the Applicant may have less remorse, acceptance of responsibility and insight into his offending than Dr Watts was led to believe during his assessment of the Applicant.

25    The Tribunal also considered Dr Dayananda's description of the effect of his offending on his wife and daughter and acknowledged that this was likely to be a protective factor, albeit not as much as it might otherwise be, because the wife and daughter consider Dr Dayananda to be innocent. Dr Dayananda was also likely to have support from friends, former colleagues and family members if he were to be released into the community. He had 'attempted to access programs and to undertake study to improve himself' which the Tribunal described. The Tribunal also took into account his time in the community while on bail.

26    On the basis of a number of those matters, which it enumerated, the Tribunal concluded that Dr Dayananda's likelihood of reoffending was low. But it then made the following findings (paras 82-83, italics in original):

On the other hand, the Tribunal did not find the Applicant to be an honest witness and the Tribunal has significant doubts as to his purported remorse and acceptance of responsibility. At the Tribunal hearing, the Applicant was often evasive in his evidence, denied most of the facts surrounding the offending and attempted to minimise the offending as an accident. The Applicant's lack of insight and acceptance, and the opportunistic nature of his offending when he was in a position of trust, confirms the Tribunal's view that there remains some risk of the Applicant reoffending or committing serious conduct in the future should an opportunity arise again. The Tribunal also queries how protective the Applicant's friends and family will be because he previously had their support, and yet he committed the Sexual Penetration Offence. This is particularly the case, given that the letter of support from the Applicant's wife contained a strong assertion as to his innocence. Further, even if the Applicant's risk of reoffending is 'low', the Tribunal considers that any likelihood of further sexual offending is unacceptable, given the serious nature of the harm caused to individual victims and to the community by such offending (see paragraph 8.1.2(1) of Direction No 90).

The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.

27    The Tribunal went on to find that the overall consideration of protection of the Australian community weighed strongly against the revocation of the cancellation of Dr Dayananda's visa.

28    Two of the four primary considerations found in Direction 90 were not applicable in Dr Dayananda's case. The fourth one was applicable, namely the expectations of the Australian community. In that regard, paragraph 8.4 of Direction 90 states as follows:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

…

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …

…

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

29    The Tribunal described this as the decision-maker 'being told unequivocally what the community's expectations are'. It said that (para 90):

paragraph 8.4(4) of Direction No 90 confirms more explicitly that the Australian community's expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government's views about community expectations without independently assessing them.

30    Approaching paragraph 8.4(4) as a deeming provision, the Tribunal concluded that the Australian community would expect that Dr Dayananda's visa should remain cancelled because of the nature of his offence, as a serious crime of a sexual nature committed against a vulnerable woman while he was in a position of trust. The Tribunal said that because of Direction 90 paragraph 8.4(3), those expectations applied regardless of Dr Dayananda's low risk of reoffending.

31    The Tribunal then went on to consider the other matters that Direction 90 required to be taken into account. It determined that non-refoulement obligations were not relevant and that there was no evidence that required it to consider the effect of its decision on the victim of Dr Dayananda's crime. The Tribunal considered some impediments that Dr Dayananda might face upon removal from Australia, including health issues and social isolation. Another consideration was Dr Dayananda's links to the Australian community, including the impact of the decision on family members and the strength, nature and duration of other ties to the community. The Tribunal considered evidence as to the effect of the decision on Dr Dayananda's wife and adult daughter. It also took into account positive contributions he had made to Australia and other ties to the community. It did not consider, however, that the consideration of any impact on Australian business interests was relevant. Dr Dayananda had submitted that he could make a significant contribution to the Australian health system as a researcher, but he had no employment as one.

32    In its ultimate conclusion, the Tribunal referred to its findings that the nature and seriousness of Dr Dayananda's offending weighed very strongly against revocation and that the risk to the Australian community should he commit further offences or engage in other similar conduct weighed strongly against revocation. Overall, the Tribunal concluded that the protection of the Australian community weighed strongly against revocation. So did the expectations of the Australian community. The Tribunal found that these primary considerations outweighed the other relevant considerations, which weighed slightly in favour of revocation. So the Tribunal's ultimate conclusion was that there was not another reason why the decision to cancel Dr Dayananda's visa should be revoked. The Tribunal thus affirmed the decision of the delegate.

The application for judicial review

33    Dr Dayananda has represented himself in this application for judicial review, save for a brief period after the Court secured pro bono representation for him and before the pro bono legal practitioner advised the Court that he was unable to continue to represent Dr Dayananda.

34    The grounds of review stated in the application are:

1.    Jurisdictional error because;

2.    Inadequate evidence to acknowledge the seriousness of the crime by the AAT;

3.    Inadequate weight given to the possibility of re-offending; and

4.    Inadequate evidence to acknowledge the expectation of the Australian community.

5.    AAT did not properly consider the depth of rehabilitation and the other considerations.

35    Dr Dayananda filed written submissions that did not engage with these grounds. Instead they went to reasons why, according to him, the decision to revoke his visa should be cancelled, or a new visa given to him. These reasons included the level of punishment and other consequences from the offending that he had already experienced, including loss of the right to practise medicine, including in Sri Lanka, and significant social isolation. The written submissions refer to a number of matters said to be relevant: political, economic and social crisis in Sri Lanka; his acceptance that he committed the crime and his deep remorse for that; his current living circumstances; his separation from his wife and daughter, who remain in Australia; his career plans which, he effectively submits, will not place him in circumstances where he can reoffend; and many contributions he says he made to Australian society including his work as a neurosurgeon at hospitals in Western Australia. The submissions conclude with a plea to revoke the cancellation of the visa, or to grant a new visa, on humanitarian grounds. Dr Dayananda returned to these themes in his oral submissions.

36    However as was explained to Dr Dayananda at the hearing, these submissions reflect a misunderstanding of the powers and functions of the Court. The Court does not have power to revoke the mandatory cancellation of Dr Dayananda's visa that occurred under s 501(3A) of the Migration Act, nor to grant any other visa. It only has power to quash the Tribunal decision under review and remit the matter to the Tribunal (or if appropriate, to grant other remedies in the nature of prerogative writs or to make orders in relation to the proceeding under s 23 of the Federal Court of Australia Act 1976 (Cth)). And it can only quash the Tribunal's decision if it finds that the Tribunal committed jurisdictional error: see Migration Act s 476A (read with definition of 'privative clause decision' in s 474); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [75]-[78]; Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [43]. Dr Dayananda's written submissions go to the merits of the Tribunal's review, and indeed go further, to the merits of the exercise of powers that even the Tribunal did not have. They do not assist the Court in the exercise of its circumscribed jurisdiction to review the Tribunal's decision for jurisdictional error.

37    I have, however, considered the grounds of review in Dr Dayananda's originating application. Despite being unfortunately expressed, they can be understood as follows (the following does not correspond exactly to the numbered grounds in the application because ground 1 is merely prefatory and ground 5 appears to consist of two different grounds, which have been split into (d) and (e) below):

(a)    The Tribunal did not have adequate evidence to support its conclusion that the crime was serious, or did not engage adequately with all the evidence on that subject (ground 2).

(b)    The Tribunal failed to give due weight to the fact that the probability that Dr Dayananda would reoffend was low (ground 3).

(c)    There was insufficient evidence to support the Tribunal's findings about the expectations of the Australian community, or the Tribunal did not engage adequately with the evidence on that subject (ground 4).

(d)    The Tribunal did not properly consider the extent to which Dr Dayananda had been rehabilitated (ground 5).

(e)    The Tribunal did not properly consider the 'other considerations' (ground 5).

Consideration

(a)    Seriousness of offending

38    It appeared from brief oral submissions that Dr Dayananda made that this ground is a reference to the sentencing judge's remark, reproduced in the second extract in [14] above, that there were factors that placed Dr Dayananda's offending 'towards the lower end of the scale'. Dr Dayananda seeks to have some weight placed on this. But it is not for this Court to substitute its own judgement as to the weight to be placed on that factor for the judgement of the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Leone v Minister for Home Affairs [2020] FCAFC 117; (2020) 277 FCR 526 at [41]. The Tribunal took that sentencing remark into account but, as has been described, discounted it on the basis that Direction 90 required it to view sexual offences as very serious. There is no error apparent in that approach.

39    In any event, the sentencing judge's remark needs to be understood in context; it is clear from the remark considered as a whole that the 'scale' in question was the scale of offences of sexual penetration without consent - an inherently serious category - and the extract set out by the Tribunal, and reproduced above, that preceded that remark in the sentencing remarks shows that the sentencing judge considered the offending to be 'a serious example of this kind of offence and there are a number of aggravating factors'. The Tribunal's reasons as described above display a reasoned evaluation of the seriousness of Dr Dayananda's conduct in all the circumstances. And Dr Dayananda does not point to any representations he made or evidence he adduced as being not properly engaged with by the Tribunal in its consideration: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25]. No error of logic or principle capable of being a jurisdictional error appears on the face of the Tribunal's treatment of the seriousness of the offence.

(b)    The probability that Dr Dayananda would reoffend

40    Dr Dayananda's oral submissions appeared to emphasise this ground. He submitted that he had undergone extensive rehabilitation programs. He said that the opinions of Dr Watts and another (unnamed) forensic psychiatrist were also to the effect that the offending was at the lower end of the scale, and said that Dr Watts considered that Dr Dayananda was 'low or no risk to … society'. He relied on the decision of the sentencing judge to grant him bail pending appeal as showing that her Honour had assessed him as being at low risk of reoffending. He appeared to submit that his conviction and incarceration and loss of his visa had been a 'very good lesson' to him, reducing the likelihood that he would reoffend. He appeared to contend on this basis that not setting the delegate's decision aside was 'kind of a mistake or misread in the tribunal viewpoint'.

41    Once again, these submissions do not identify any jurisdictional error in the approach of the Tribunal. They are instead an invitation to the Court to engage in merits review of the Tribunal's assessment of the risk that Dr Dayananda would reoffend or the weight that it put on that risk in reaching its ultimate decision. It is not the function of the Court to assess the merits of the decision in that way; it could only intervene in these circumstances if the Tribunal’s purported exercise of power was excessive or otherwise unlawful: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [23]-[24]. There is no jurisdictional error apparent on the face of the Tribunal's assessment of the risk. To the extent that the Tribunal did not fully accept Dr Watts' opinion, as described above it gave considered and coherent reasons for that, and no jurisdictional error emerges.

42    It is true that, applying paragraph 8.1.2(1) of Direction 90, the Tribunal said that any risk that the offence would be repeated would be unacceptable. It may be that too categorical a statement of that kind can result jurisdictional error, if it is accompanied by a lack of analysis of the actual likelihood of reoffending or the gravity of the consequences if reoffending did occur: see Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [101]-[104] (Mortimer J); Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42], [64] (Gilmour J). But the Tribunal's reasons here show a careful review of the evidence before it in order to assess the likelihood that Dr Dayananda would reoffend. The Tribunal also considered the gravity of the consequences if that were to occur, by reference to the evidence in the criminal proceedings as to the actual consequences for the victim in this case. Dr Dayananda may disagree with the Tribunal's assessment of those things, including its doubts about his level of remorse and acceptance of responsibility. But it is not the function of this Court to rule on the merits of those matters. This ground reveals no jurisdictional error.

(c)    Expectations of the Australian community

43    This ground was not developed at all in submissions and it was not clear on what basis Dr Dayananda submits that the Tribunal erred in its treatment of the expectations of the Australian community. Paragraph 8.4, extracted above at [28], is clear in directing decision makers to proceed on the basis that the Australian community expects a person who has committed a serious crime, which includes a sexual crime, against a woman, should not continue to hold a visa. In FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 a Full Court, by majority, confirmed that a predecessor to paragraph 8.4 operated as a deeming provision. It requires the decision maker bound by the direction to take community expectations to be against the grant of the visa or, in the present case, against revocation of the mandatory cancellation of the visa. Contrary to Dr Dayananda's suggestion in this ground, it is not a matter for evidence. The weight to put on that primary consideration is, however, a matter for the decision maker. See FYBR at [66]-[67], [73]-[77] (Charlesworth J), [89]-[93], [101], [103]-[105] (Stewart J).

44    It is not at all clear what error in the construction of the paragraph, or its application to his case, Dr Dayananda asserts. The Tribunal's approach to this factor is consistent with FYBR. This ground does not establish any jurisdictional error.

(d)    Rehabilitation

45    Dr Dayananda pointed to no error specific to the Tribunal's consideration of his rehabilitation to date, or prospects for further rehabilitation. This ground adds nothing to the second ground I have articulated above, concerning the risk of reoffending, and does not establish any jurisdictional error.

(e)    Properly considering other considerations

46    Dr Dayananda did not identify which particular 'other considerations' this ground of review is referring to. Section 9 of Direction 90 requires decision makers to take a number of named considerations into account that are not identified as primary considerations and which the direction itself labels as 'other considerations'. But if this ground concerns those considerations, Dr Dayananda did not say which ones the Tribunal had failed to consider properly, or how it failed to do so. No error is apparent on the face of the Tribunal's treatment of those matters, as described above. This ground does not identify any jurisdictional error.

Conclusion

47    Dr Dayananda has failed to establish jurisdictional error by the Tribunal. His application must be dismissed, with costs.

Associate:

Dated:    8 September 2022