Federal Court of Australia

JFJF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) visa. The Tribunal determined that the applicant was a danger to the Australian community and therefore did not meet the criterion in s 36(1C) and s 36(2C)(b) of the Migration Act 1958 (Cth).

background

2    The applicant is a citizen of South Sudan. He arrived in Australia in August 2006, aged 18 years, as a holder of a Refugee (Class XB) visa.

3    Between 2007 and 2015 the applicant was convicted of various offences. A summary of the applicant’s criminal record is set out in a national police certificate dated 7 December 2017. His offending included a conviction on 3 December 2010 for aggravated robbery and threaten injury to person, and a conviction on 31 July 2015 of contravene prohibition/restriction in AVO (domestic), assault occasioning actual bodily harm (DV) and shoplifting.

4    On 23 December 2015 the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act on the basis that he had been sentenced to a term of imprisonment of 12 months or more and thus had a substantial criminal record and was serving a full time custodial sentence. The applicant requested the Minister to revoke the cancellation. That request was declined.

5    On 10 July 2017 the applicant applied for a protection (Class XA) visa. On 25 July 2017 that application was refused on the basis that a delegate of the Minister was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations.

6    The applicant sought merits review of that decision in the Tribunal and on 17 October 2017 the Tribunal, in its Migration and Refugee Division remitted the matter for reconsideration with a direction that the applicant satisfied s 36(2)(aa) of the Migration Act.

7    On 14 September 2018 a different delegate of the Minister decided to refuse the applicant’s application for a protection visa pursuant to s 501(1) of the Migration Act on the basis that the applicant represents a risk of harm to the Australian community which was unacceptable.

8    On 27 November 2018 that decision was set aside by the Tribunal in its general division pursuant to s 42C(2) of the Administrative Appeals Tribunal Act 1975 (Cth) and remitted to the Minister for reassessment.

9    On 10 February 2021 a delegate of the Minster decided to refuse the applicant’s application for a protection visa on the basis that the applicant did not satisfy s 36(1C) and s 36(2C)(b)(ii) of the Migration Act. In her reasons the delegate referred to the Tribunal’s decision on 17 October 2017 and that at that time the Tribunal had remitted the application for reconsideration with a direction that the applicant satisfies s 36(2)(aa) of the Migration Act and is therefore a person in respect of whom Australia has protection obligations.

10    The applicant applied to the Tribunal for review of that decision.

11    Before the Tribunal, the applicant relied on a psychologist’s report dated 6 August 2019 (Psychologist’s Report) prepared by Hasan Cinar, a psychologist at Mindways Psychological Services for Children and Adults, at the request of the applicant’s solicitor. It is the Tribunal’s consideration of Mr Cinar’s report that is central to the applicant’s ground of review (see [35] below). In his report, among other things, Mr Cinar explained that he had assessed the applicant on 20 July 2019 for approximately two and a half hours “consisting of an hour of structured clinical interview and one and a half hours of psychometric testing” and that he had a later phone call to confirm further information concerning the applicant’s criminal history. Mr Cinar noted that he had administered a number of standardised tests on the applicant to examine three areas: depression and anxiety scales, ADHD testing and risk assessment.

12    The applicant drew attention to the parts of the Psychologist’s Report where Mr Cinar:

(1)    considered risk assessment and, in particular, where he reported under the heading “The Level of Service Inventory-Revised (LSI-R)” that (as written):

[The applicant’s] results indicate that he falls in the low moderate range for overall risk needs offences. It is noted that the fact that he falls in this range is largely attributed to his criminal history. Whilst his criminal history is unchangeable and therefore a static risk factor, substance abuse is a behaviour that is a dynamic risk factor and is therefore theoretically amenable to change. Those makes the substance abuse problems possible targets for treatment and modification which could reduce his risk of reoffending.

It is noted that [the applicant] has a number of protective factors in place which will act to protect against recidivism. These include his relationship with his family, his wife and their daughter, secured employment upon his leave from Villawood Detention Centre and access to psychological treatment surrounding his PTSD.

(2)    drew his overall conclusions which included that:

Assessing the risk of future offending, [the applicant] presents with protective factors that may subjugate the likelihood of re-offending. This may be possible, should [the applicant] continue his abstinence with alcohol and consider treatment for his PTSD symptoms. Furthermore, given that he reported being in a stable relationship, has a family and secured employment, [the applicant’s] risk of re-offending may be further reduced.

13    On 22 October 2021 the Tribunal affirmed the delegate’s decision. It is that decision that is the subject of this application.

legislative framework

14    Before proceeding further it is convenient to set out the relevant sections of the Migration Act.

15    Section 36 of the Migration Act concerns protection visas and, in particular, sets out the criteria which must be met by an applicant for a protection visa.

16    Section 36(1A) of the Migration Act provides that an applicant for a protection visa must satisfy both of the criteria in subs (1B) and (1C) and at least one of the criteria in subs (2).

17    Relevantly s 36(1C) of the Migration Act provides:

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

18    Section 5M of the Act provides:

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

19    These terms are defined in s 5 of the Migration Act. Relevantly, “serious Australian offence” is defined to mean:

… an offence against a law in force in Australia, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)    the offence is punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

the tribunal’s decision

20    At [17] of its reasons, the Tribunal noted that its task was to determine whether it was satisfied on reasonable grounds that the applicant:

(1)    has been convicted by final judgment of a particularly serious crime; and

(2)    is a danger to the Australian community.

21    There was no issue between the parties in relation to the first matter, namely that the applicant had been convicted by a final judgment of a particularly serious crime. The applicant’s ground of review in this Court concerns the Tribunal’s finding in relation to the latter issue.

22    After setting out the relevant legislative provisions and authorities in relation to s 36(1C) of the Migration Act, the Tribunal set out the applicant’s background, including his criminal offending. Among other things, it referred to the applicant’s past in South Sudan and then Kenya, where he lived in a refugee camp, before coming to Australia. The Tribunal recounted that history in some detail noting discrepancies in the facts recited by the applicant at different times. The Tribunal observed that in one version of his history during this period the applicant had said that he was forced to be a child soldier in Sudan but that he escaped to Uganda and ended up in a refugee camp in Kenya where, to his amazement, he found his mother who had, until that point, believed he had passed away. However, this version of events was not included in other material submitted by the applicant and was contrary to his own mother’s account.

23    At [37]-[38] of its reasons the Tribunal made the following findings about this period of the applicant’s life:

37.    I do not accept that the Applicant was abducted by himself and forced to commit atrocities or that he spent any extended time away from his family before coming to Australia. I think it likely that parts of his account were taken from the experiences of others. The fact that the Applicant told such a fabrication to the Tribunal undermines the credibility of his evidence in general.

38.    I accept that the Applicant experienced hardship and trauma before coming to Australia.

24    The Tribunal then set out the history of the applicant’s offending while in Australia. In the course of doing so, it identified a number of issues with the applicant’s evidence, in particular, where he denied events having taken place. In each case the Tribunal preferred contrary evidence over the applicant’s denial. For example:

(1)    at [57] of its reasons the Tribunal referred to a probation and parole service report dated 24 February 2009 in which it was alleged that the applicant assaulted his mother when she travelled to Sydney to attempt to persuade him to return to Coffs Harbour with her in accordance with his parole conditions. The applicant denied this to be so at the hearing. However, the Tribunal observed that “Ms T”, who was the applicant’s partner, said in her evidence that the applicant’s mother’s efforts to stop the applicant drinking “made him bash her” without specifying the time when that occurred. Given Ms T’s evidence to the effect that the applicant did assault his mother at some stage the Tribunal preferred the contemporaneous record, namely the report of the probation and parole service, over the applicant’s denial;

(2)    at [70] of its reasons, the Tribunal referred to a recommendation made on 2 December 2011 that the applicant’s parole be revoked due to multiple breaches of his parole conditions, including a failure to abstain from drug use. The Tribunal referred to community corrections file notes made on 31 October 2011 and 22 December 2011 which referred to cannabis use by the applicant. At [74] of its reasons the Tribunal noted that those file notes were put to the applicant and he denied that he was using cannabis at the time. The applicant said that all his incidents related to alcohol and he never tried cannabis. The Tribunal continued:

… In re-examination, in response to a very leading question from his lawyer that was expressly intended to resolve the inconsistency between the objective evidence of cannabis use and the Applicant’s denials, the Applicant admitted to having used cannabis once, twice or three times when he was young at parties, a long time ago, in 2009 and 2010. The Applicant’s late admission to limited use did not restore his credibility in my mind.

(Footnotes omitted.)

(3)    at [87] of its reasons the Tribunal referred to a provisional apprehended violence order which prohibited the applicant from approaching or contacting a “Ms S”, who the applicant was “seeing” at the time. The Tribunal noted the applicant’s evidence that he was drunk and did not remember what had happened but that he understood from what the police had told him that he and Ms S had argued and he had slapped her face but he denied having done any more than slapped her once. In relation to that evidence the Tribunal said at [88]:

… This is perhaps the most obviously implausible denial that the Applicant gave in the hearing as it seems impossible that one slap could have resulted in bruising to both of Ms S’s eyes and a bloody nose. When shown the colour photographs, the Applicant said the apparent bruising was make up, that Ms S had lied about the assault, and one slap could have caused bruising to both eyes.

(Footnotes omitted.)

The Tribunal then referred to contemporaneous police file notes about the incident.

25    At [92] of its reasons the Tribunal noted that since 25 January 2015 the applicant has been either in prison or in immigration detention and referred to incident reports and file notes recording allegations of misbehaviour by the applicant between 2015 and 2017, all of which the applicant denied.

26    At [94]-[95] of its reasons the Tribunal said:

94.    In the course of cross examination, it was put to the Applicant that he had consistently claimed that information recorded by doctors, nurses, prison officers, parole officers and SERCO officers were lies, and that, in fact, the information was correct and accurate. The Applicant said that some of it was true and some was not.

95.    I consider it very unlikely that so many unrelated people all falsely accused the Applicant of the same kinds of wrongdoing over an 11 year period. Some of the Applicant’s exculpatory evidence seemed far-fetched, and some was internally inconsistent. I do not expect the contemporaneous records made by police, parole and probation officers, prison staff, detention centre staff and IHMS staff to be completely accurate. For example, the IHMS file note dated 29 June 2017, that I have referred to above, incorrectly stated that the Applicant came to Australia in 2004 rather than 2006. However, those records as whole paint a coherent picture of a person who has a problem with alcohol and cannabis and is prone to predatory behaviour and violence. I consider that evidence, as whole, to be more reliable than the Applicant’s exculpatory evidence and I prefer it where there is a difference. I accept that the Applicant engaged in the crimes and other serious conduct alleged in that evidence.

(Footnotes omitted).

27    At [96] of its reasons the Tribunal considered whether the applicant is a danger to the community. In doing so, it referred first to the applicant’s offending, noting that it was very serious, and concluded that it was “reasonable to infer that repeated offending would cause physical and/or psychological harm to victims”.

28    The Tribunal noted that in a letter to the Minister dated 5 August 2019 the applicant had expressed remorse for his offending and asked for another chance to have a better life. At the hearing before the Tribunal the applicant indicated that he wished to continue treatment for alcohol in the community, to get a job and support himself and his family and that his brothers who are all employed or studying, would support him. The Tribunal noted that the applicant had previously, in response to a threat that his visa would be cancelled in 2009, acknowledged the link between alcohol and his offending and expressed a commitment to engage in treatment to avoid reoffending but that he did not do that while in the community on parole. While the applicant had completed some courses in 2007 he went on to consume alcohol in detention and engaged in aggressive behaviour.

29    The Tribunal then considered the Psychologist’s Report.

30    In relation to the Psychologist’s Report at [99]-[100] the Tribunal said (as written):

99.    I have before me a psychological report from a Mr Hasan Cinar, psychologist at Mindways Psychological Services for Children & Adults, dated 6 August 2019. The report indicates that Mr Cinar spoke with the Applicant for around 2 ½ hours which included a structured clinical interview and psychometric testing. The Applicant told Mr Cinar that during the civil war in Sudan he witnessed murders, bombings and people losing limbs. He currently experienced nightmares and flashbacks regarding the war, and was provisionally diagnosed with PTSD. Mr Cinar administered tests to assess the Applicant’s current risk of alcohol related problems and drug use disorders. However, the tests, on which the Applicant score indicated a low risk level, only took into account his alcohol and substance use in the past 12 months.

100.    Mr Cinar administered the Level of Service Inventory Revised (LSI-R) which indicated a low-moderate risk of offending that Mr Cinar said was largely attributable to his criminal history. These tests relied to some extent on the Applicant’s self-report, which is demonstrably unreliable, and it is not apparent that Mr Cinar was informed of the reports of incidents in gaol and Immigration Detention. Mr Cinar said addressing his substance abuse problems and continued abstinence from alcohol could reduce the Applicant’s risk of reoffending. He noted a number of protective factors including his relationship with his family, his wife (Ms T) and their daughter, secured employment upon release and access to psychological treatment surrounding his PTSD. Mr Cinar’s assumption that Ms T would serve as a protective factor is, for reasons I will come to, most likely incorrect. I do not have confidence in Mr Cinar’s conclusions because they are not based on reliable information. I note that since Mr Cinar’s report, the Applicant was suspected of being intoxicated on an occasion when he was exhibiting aggressive behaviour, and on another occasion home brew was found in his room. I do not give Mr Cinar’s report much weight.

31    The Tribunal made a number of other observations about the applicant including that:

(1)    its overall impression was that the applicant’s treatment for his past trauma may have been patchy and his commitment inconsistent;

(2)    the applicant appeared to have outstanding treatment needs in relation to past trauma, dealing with stressful situations, alcohol dependency and drug abuse;

(3)    the applicant had not engaged in any sex offender treatment program and did not indicate that he had any plans to do so;

(4)    the applicant’s approach to rehabilitation in the past had been passive and he blamed others for his failure to engage;

(5)    the applicant was not currently on any medication for his mental health although he had previously taken such medication;

(6)    overall it was not confident that Ms T, his current partner, would hold the applicant accountable for his behaviour or that she would encourage him to abstain from drug and alcohol use;

(7)    one of the applicant’s brothers proposed to give him a full time job and accommodation in his home. That brother could afford to pay for any rehabilitation or any other help the applicant might need;

(8)    the applicant’s mother lives very close to the applicant’s brother and she did not think that he would resume drinking if he was allowed out;

(9)    the applicant’s mother seemed like a responsible person who would encourage the applicant to abstain from drug and alcohol use; and

(10)    the applicant’s brother was a significant protective factor as he would provide the stability and support the applicant would need if he chose to get treatment and abstain from substance abuse and crime.

32    However, the Tribunal also noted that the applicant’s rehabilitation would depend on him making a choice to abstain from drug use and criminal conduct. The Tribunal observed that, while the applicant expressed a commitment to some form of rehabilitation, the fact that he:

    avoided taking responsibility for much of his past wrong doing;

    denied his significant cannabis use; and

    sought to blame others for his offending,

did not engender any confidence that he was genuinely committed to rehabilitation or that he would consider himself to be responsible for his behaviour in the future and therefore that he would refrain from drug and alcohol abuse and offending.

33    At [120] of its reasons, the Tribunal concluded that it thought it was “likely that if the Applicant were allowed to re-enter the wider community he would re-offend in the ways he has before”.

34    The Tribunal therefore concluded that the applicant posed a present and serious risk to the Australian community. It was satisfied, on reasonable grounds that, having been convicted by a final judgment of a particularly serious crime, the applicant is a danger to the community such that he did not satisfy the criteria for a protection visa in s 36(1C)(2)(b) of the Migration Act. The Tribunal also noted that the applicant was “caught by” s 36(2C)(b) of the Migration Act such that he did not satisfy s 36(2)(aa) of that Act.

the applicant’s ground of review

35    In an amended originating application the applicant raises a single ground of review which concerns the Tribunal’s finding that he is a danger to the Australian community within the meaning of s 36(1C) of the Migration Act. The applicant contends that:

1.    The Tribunal erred in finding that the Applicant is a danger to the Australian community within the meaning of s 36(1C) of the Migration Act 1958 (Cth) (the Act).

Particulars

a.    There was a psychologist’s report before the Tribunal stating that the Applicant presented a low to moderate risk of re-offending if released into the Australian community: Reasons at [99]-[100];

b.    The Tribunal made a finding that this evidence was not based on reliable information and thus accorded it little weight: Reasons at [100];

c.    The basis upon which the Tribunal discounted the psychologist’s evidence was that the report was derived partly from the Applicant’s self-report, which the Tribunal assessed to be “demonstrably unreliable”: Reasons at [100];

d.    The risk of re-offending and recidivism is “a primary consideration” when assessing whether an applicant for a protection visa is a danger to the Australian community: DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [76], Reasons at [23];

e.    The Tribunal ultimately found that the Applicant would likely re-offend if allowed to re-enter the wider community, contrary to the psychologist’s evidence: Reasons at [120]-[121];

f.    Given the criticality of the psychologist’s material to the assessment of whether the statutory criteria in s 36(1C) of the Act was met, it was unreasonable or irrational for the Tribunal to discount the psychologist’s evidence, in circumstances where: (a) the Applicant’s self-report formed only one part of the psychologist’s assessment; alternatively (b) the Tribunal’s assessment that the Applicant was “demonstrably unreliable” was itself unreasonable or irrational, being premised on a finding that the Applicant fabricated aspects of the trauma he suffered as a child in South Sudan over 20 years ago;

g.    This error infected the Tribunal’s ultimate finding that the Applicant is a danger to the Australian community within the meaning of s 36(1C) of the Act, such that its decision was affected by jurisdictional error.

the applicant’s submissions

36    The applicant submitted that the Tribunal’s reasons discounted the Psychologist’s Report. He contended that, although the Tribunal stated that the psychologist’s evidence was not given “much weight”, it is apparent on the face of the reasons that the psychologist’s conclusions did not factor into its assessment of the likely risk of the applicant re-offending in any meaningful way. The applicant observed that the Tribunal discounted the report because:

(1)    the test administered by the psychologist “relied to some extent on the applicant’s self-report” which the Tribunal concluded was “demonstrably unreliable”;

(2)    the Tribunal was not satisfied that the psychologist was aware of reports indicating that the applicant had been involved in incidents involving drugs and alcohol while in immigration detention; and

(3)    in the Tribunal’s opinion, the assumption that the applicant’s partner would serve as a protective factor upon the applicant’s release was “most likely incorrect”.

37    The applicant submitted that these three factors are the only factors mentioned and therefore must have been the factors which fed into the Tribunal’s dispositive finding that the psychologist’s conclusions were “not based on reliable information”, as referred to in the Tribunal’s reasons at [100].

38    The applicant submitted that as the Tribunal’s statutory task was to assess the danger he posed to the Australian community and that the expert evidence, which indicated that he posed a low to moderate risk of reoffending, was critical evidence going to the heart of the matter before the Tribunal. He contended that the authorities establish, and the Tribunal accepted, that the risk of reoffending and recidivism and the likelihood of “relapsing into crime” is a primary consideration when assessing whether a person constitutes a danger to the Australia community for the purposes of s 36(1C) of the Migration Act.

39    The applicant submitted that there are two reasons why the risk of reoffending is so central to the question of whether the statutory criterion in s 36(1C) of the Migration Act is met.

40    The first is because the inquiry is forward looking in that the satisfaction must be that the person is and will into the indefinite future be a danger, not that he was once a danger. The applicant said that although a person’s criminal history is a relevant consideration under s 36(1C), its relevance arises because of its capacity to bear upon the likelihood of the person reoffending in the future. The applicant contended that, as the structure of the section makes clear, the requirement that the person present as a “danger” to the Australian community is additional to the requirement of a commission of a particularly serious crime. The commission of such a crime is necessary but not sufficient to engage the ineligibility criteria in s 36(1C) of the Migration Act.

41    The second reason is because the requirement that the person is a “danger” to the Australian community requires, at least, that there is a “real or significant risk or possibility of harm to one or more members of the Australian community”. The applicant submitted that the requirement of danger may also be suggestive of a higher or more stringent level of risk in the sense of a “present and serious risk”.

42    The applicant contended that it is not necessary for the purposes of his application to resolve the question of the applicable standard. This is because in either case an accurate assessment of a person’s actual risk of reoffending, having regard to relevant material so as to establish reasonable grounds for a belief that the person is a danger to the Australian community, is essential to the exercise of the statutory task. The applicant observed that this requirement, in turn, ensures the section can operate as intended, having regard to its purpose. In support of this submission the applicant referred to KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 at [51]-[55].

43    The applicant submitted that, in light of the authorities, expert evidence directly assessing questions relating to the likelihood of reoffending and recidivism was critical evidence that should not have been discounted or accorded little weight without compelling justification. He contended that, in the absence of compelling justification, the exclusion of that evidence, which bears directly on the central statutory inquiry, has the consequence that the Tribunal’s satisfaction that the applicant poses a danger to the Australia community:

(1)    cannot be said to be based on reasonable grounds, as the statute requires; and

(2)    was irrational or illogical so as to vitiate the formation of the state of satisfaction under s 36(1C) of the Migration Act.

44    The applicant submitted that there was no compelling justification in the present case and that each of the reasons relied upon by the Tribunal to justify its discounting of the Psychologist’s Report has, at best, a dubious foundation. The applicant said that was so for the following reasons:

(1)    the Tribunal’s finding that the report could be excluded because it was based on the applicant’s “self-report” was erroneous as only parts of the report were so based. The expert’s assessment of his recidivism risk was based on his criminal history, self-report, results of psychometric testing and background information, including socio-demographic data, education and employment history, physiological profile and substance abuse history. All of this information was before the expert and informed his assessment. Further, the applicant’s “self-report” was not the only factor informing the critical component of the report, appearing under the heading “risk assessment”, which was based upon the LSI-R described in the report as a “quantitative survey of attributes of offenders and their situations”;

(2)    in any event, the Tribunal’s finding that the applicant was “demonstrably unreliable” has no express foundation in the Tribunal’s reasons. Apart from finding that the applicant fabricated aspects of the trauma he suffered whilst fleeing South Sudan during his childhood, there are no explicit findings about the applicant’s credibility or tendency to be truthful or not, although the applicant accepts that the Tribunal at times indicated that it preferred other evidence over the applicant’s denial of certain events. It is implicit in those findings that the Tribunal considered the applicant to be evasive in some respects. However, any consistencies in recollection or truthfulness exhibited by the applicant in relation to his past trauma as a child in South Sudan was not a rational basis upon which to conclude information disclosed by him to a psychologist in connection with his offending and substance abuse was “demonstrably unreliable”. The applicant said that not all findings going to matters of credibility are capable of rationally affecting questions of credibility on other, unrelated, factual matters. He contended that this might particularly be thought to be the case here given the first and most emphatic adverse credibility finding the Tribunal made related to the applicant’s recollections of childhood trauma, a matter that might be thought to be inherently unreliable particularly in circumstances where the Tribunal appeared to accept the applicant’s diagnosis of PTSD in connection with that trauma. The relevance of this finding to the primary task before the Tribunal was never made clear in the Tribunal’s reasons, although several pages of its reasons are devoted to it. To the extent it appears to have informed the Tribunal’s decision to exclude the Psychologist’s Report, this reasoning was irrational; and

(3)    the Tribunal rejected the psychologist’s evidence because he identified the applicant’s partner as a protective factor likely to reduce the risk of reoffending which the Tribunal found was likely to be incorrect, based on evidence given by the applicant’s partner. The applicant contended that this finding ignored, without explanation, other critical elements of his support system that the psychologist also found would reduce the risk of reoffending, including the fact that the applicant had secured employment upon release from immigration detention and enjoyed the support of other family members.

45    The applicant submitted that each of these findings may not alone have been sufficiently irrational or unreasonable to justify setting aside the Tribunal’s decision. However, when they are relied upon by the Tribunal as cumulative bases for rejecting central evidence going to the heart of the Tribunal’s task on review, the consequence was that the Tribunal’s decision not to give weight to the evidence was lacking in a reasonable or rational basis which resulted in jurisdictional error.

46    The applicant submitted that the Tribunal’s irrational or unreasonable failure to have regard to the psychologist’s assessment of the low to moderate risk of his reoffending was material to the Tribunal’s ultimate finding that the applicant is a “danger to the Australian community” within the meaning of s 36(1C) of the Migration Act. He contended that once the Tribunal’s error is made out there is little doubt that the requirement of materiality is satisfied because the psychologist’s assessment went to the heart of the inquiry under s 36(1C) of the Migration Act. Given that, it readily follows that the Tribunal’s decision could realistically have been different had it accorded appropriate weight to that material.

consideration

47    There was no dispute between the parties about the principles governing the consideration of s 36(1C) of the Migration Act.

48    In KDSP, which concerned s 501A(2) of the Migration Act, one of the questions before a Full Court of this Court (Bromberg, O’Callaghan and Steward JJ) was whether the power to refuse the grant of a visa in s 501 of the Migration Act is available to be exercised by the Minister in relation to an application for a protection visa. In that context, Bromberg J considered s 36(1C) of the Migration Act. At [51]-[55] his Honour relevantly said:

51    It is clear then that the purpose of s 36(1C) is the same irrespective of whether the visa applicant is a person to whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). … In the context of the Act’s scheme for the grant of a protection visa — a scheme which (at least in part) is designed to facilitate Australia meeting its protection obligations to persons who satisfy the criterion in s 36(2)(a) or s 36(2)(aa) — s 36(1C) serves to enable Australia to refuse a visa to such a person because the person poses a danger to Australia and its people.

52    That is the mischief or subject dealt with by s 36(1C) — the protection of Australia and the Australian community from persons who by reason of their past criminality pose a danger to the Australian community or alternatively are a danger to Australia’s security. Each of those mischiefs provides a ground of refusal for an application for a protection visa.

53    Whether or not either of those mischiefs exist requires the Minister to make an assessment and to be satisfied of the existence of each mischief “on reasonable grounds”. The criterion for determining whether either of the mischiefs exist is specific and mirrors the criterion in Art 33(2). It reflects the specific calibration adopted by Art 33(2) in the “balance” that Art 33 strikes between providing protection from refoulement to those who need it and protection to the host State and its people.

54    Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia — a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a “particularly serious crime” (as defined by s 5M) and therefore be a “danger to the Australian community”.

55    That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.

49    Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 (2021) 287 FCR 581 concerned, among other things, an appeal by the Minister from orders made in this Court quashing a decision by the Minister to refuse to grant the respondent a protection visa.

50    The facts were somewhat complicated. Relevantly, the respondent’s Refugee and Humanitarian (Class XB) visa was cancelled in 2015 under s 501(3A) of the Migration Act and the respondent’s subsequent application for revocation of that decision was unsuccessful. The respondent then applied for a protection visa. A delegate of the Minister refused to grant the visa because of s 36(1C)(b) of the Migration Act.

51    The respondent successfully sought review in the Tribunal which concluded that there were not reasonable grounds for considering that the respondent was a danger to the Australian community. The Tribunal set aside the delegate’s decision and remitted the matter for reconsideration “with the direction that the applicant is not a danger to Australia”. The matter was remitted in accordance with the Tribunal’s decision. Upon its reconsideration, as directed by the Tribunal, the Minister did not decide the criterion in s 36(1C)(b) was not satisfied. Instead, the Minister refused to grant the protection visa because he was not satisfied that the respondent passed the character test in s 501(6) of the Migration Act and thus exercised his discretion under s 501(1) to refuse to grant the visa.

52    In considering the issues on appeal, which included the question of whether the Tribunal’s decision in relation to s 36(1C) of the Migration Act was a mandatory consideration in relation to the Minister’s exercise of his discretion under s 501(1) of the Act, at [26]-[27] a Full Court of this Court (Perram, Thawley and Stewart JJ) said:

26    Section 36(1C) enacts into domestic law Australia’s interpretation of Art 33(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 33(1) prohibits the expulsion (or refoulement) of a refugee to places where his or her life or freedom would be threatened on account of a convention reason. Article 33(2) provides:

The benefit of [Art 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

27    Whilst the issues raised by s 36(1C)(b) and 501(1) might overlap, the statutory questions posed by the provisions are different in many respects. Section 36(1C) does not provide a discretionary power. Rather, it provides, through the mechanism of a criterion of eligibility for a protection visa, a limited exception to Australia’s non-refoulement obligation. Reflecting the language of Art 33(2), s 36(1C)(b) contains a requirement that the view taken by the Minister must be taken “on reasonable grounds”.

53    In considering the Tribunal’s reasons and the test it applied in assessing “danger to the Australian community”, at [32]-[33] the Full Court said:

32    The Tribunal set out each of the various observations which had been made by the Honourable B Tamberlin QC in WKCG v Minister for Immigration and Citizenship [2009] 110 ALD 434 (WKCG) at [25], [26] and [29]-[31] as to the meaning of “danger to the Australian community”: at T[25]. The test as articulated in WKCG at [31] is, in summary: whether there is a real or significant risk or possibility of harm to one or more members of the Australian community; it “involves an assessment of the applicant’s level of risk”, but probability of harm is not required for a conclusion that the person “is a danger to the Australian community”.

33    It should be noted that the question whether the test is accurately stated in WKCG does not directly arise for consideration in this appeal, but there is a real question in that regard – see: DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [72]-[89] (Logan J).

54    In this case, the Tribunal set out the principles relating to the meaning of the phrase “danger to the Australian community” at [20] to [27] of its reasons. In doing so it referred to the decisions in WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434, DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [83] and KDSP at [54]. At [26]-[27] the Tribunal said:

26.    The meaning of danger must contemplate both the probability of a thing occurring and the harm that will result from its occurrence. For example, a high probability that a person will park illegally presents much less of a danger than a moderate probability that a person will commit murder. I do not interpret “danger” in the context in which it is used in s 36(1C)(2)(b) or s 36(2C)(b) of the Act, to refer only to probability. Nor do I think that Logan J’s formulation of “present and serious risk” or Bromberg J’s “high level of risk” are intended to confine the meaning of the word in that way.

27.    The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of removing him to South Sudan.

55    As was the case in EBD20, the question of whether the test set out in WKCG is properly stated does not arise here. Neither party took issue with the Tribunal’s summary of the principles or its approach to them. Rather the question to be considered is whether the Tribunal erred in its finding that the applicant is a danger to the Australian community because of its treatment of the Psychologist’s Report.

56    The Tribunal considered the central question of whether the applicant was a danger to the Australian community at [96] to [121] of its reasons. In undertaking that assessment it had regard to the Psychologist’s Report which is summarised at [11], [12] and [30] above. At [99] to [100] of its reasons (see [30] above) the Tribunal addressed that report and noted in relation to it that:

(1)    the tests in which the applicant achieved a score which indicated a low risk level in relation to alcohol related problems and drug use disorders only took into account the applicant’s alcohol consumption and substance use in the past 12 months;

(2)    the Level of Service Inventory Revised, which indicated a low-moderate risk of offending, relied to some extent on the applicant’s self-report which the Tribunal said was “demonstrably unreliable”;

(3)    it was not apparent to the Tribunal that Mr Cinar had been informed of reports of incidents in gaol and immigration detention;

(4)    it considered that the applicant had a number of protective factors including his relationship with his family, his partner and their daughter, secured employment upon release and access to psychological treatment for his PTSD. However, the Tribunal expressed the view that Mr Cinar’s assumption that the applicant’s partner, Ms T, would serve as a protective factor was, for reasons it explained, most likely incorrect; and

(5)    it did not have confidence in the conclusions in the Psychologist’s Report because they were not based on reliable information. It noted that since the report the applicant was suspected of being intoxicated at a time when he was exhibiting aggressive behaviour and when home brew was found in his room.

57    The Tribunal concluded that it would not give the Psychologist’s Report much weight, a finding which the applicant contends is unreasonable and irrational. The applicant says that is so for the three reasons set out at [44] above.

58    Before addressing each of these contentions, it is convenient to set out the principles that inform when a finding or decision by a decision-maker, such as the Tribunal, may be unreasonable or illogical or irrational.

59    In relation to legal unreasonableness, in Minister for Immigration v SZFVW (2018) 264 CLR 541 at [10]-[11] Kiefel CJ said:

10    In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

11    Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

12    In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.

(Footnotes omitted.)

60    To like effect at [54] Gageler J said:

The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository. Being a question as to the limits of statutory authority, it is a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer. Whilst “there has never been a pervasive notion that limited government mandated an all-encompassing judicial duty to supply all of the relevant meaning of statutes”, the constitutional entrenchment of judicial power in courts of competent jurisdiction leaves no room for doubt that “the judicial duty is to ensure that [an] administrative agency stays within the zone of discretion committed to it by its organic act”.

(Footnote omitted.)

61    In relation to illogicality or irrationality on the part of a tribunal in relation to its fact finding function in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] Crennan and Bell JJ said:

In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

62    I turn to consider whether, as contended, the Tribunal’s treatment of the Psychologist’s Report was unreasonable or irrational for the reasons advanced.

63    First, in relation to the self-reporting, the Tribunal acknowledged in its reasons at [100] that the report was based “to some extent” on self-reporting. That is, the Tribunal observed that in coming to his views Mr Cinar relied on self-reporting by the applicant as well as other matters. Contrary to the applicant’s contention, the Tribunal did not say that Mr Cinar relied only on the applicant’s self-reporting.

64    Secondly, contrary to the applicant’s submission, the Tribunal’s finding, in reference to Mr Cinar’s reliance on the applicant’s self-reporting, that the applicant was “demonstrably unreliable” had foundation. The Tribunal considered the applicant’s evidence in relation to his experiences before he came to Australia. In doing so it identified a number of inconsistencies in that evidence. The applicant contends that inconsistencies in recollection or truthfulness relating to the applicant’s past trauma as a child in South Sudan was not a rational basis upon which to conclude that the information disclosed to Mr Cinar was unreliable.

65    In its reasons at [30] the Tribunal observed that the inconsistencies in the applicant’s evidence were not directly relevant to the question before him, whether the applicant is a danger to the Australian community, but it also noted they “speak to his credit as a witness”. The Tribunal pointed out that this in turn influenced some of its findings of fact relating to the assessment of the applicant’s risk to the community. In making the express finding (at [37]) rejecting the applicant’s claims that he was abducted, forced to commit atrocities and spent time away from his family as a child, the Tribunal noted that the fact that the applicant fabricated this evidence “undermines the credibility of his evidence in general”.

66    Further, in the context of this matter, as the applicant concedes, the Tribunal, in other parts of its reasons (see summary at [24] above), expressly preferred the evidence of other witnesses over that of the applicant and must implicitly be taken to have found that the applicant was not only evasive but was unreliable as a witness.

67    Having regard to the Tribunal’s reasons as a whole, there was a logical and rational basis for its later finding about the applicant’s “demonstrable unreliability” in the context of the Psychologist’s Report and its reliance on the applicant’s self-reporting. That finding was not one which could be said to be irrational or so outside the bounds of reasonableness such that it infected the overall finding about and weight given to the Psychologist’s Report by the Tribunal.

68    The third matter concerns the Tribunal’s view that the finding in the Psychologist’s Report that the applicant’s partner would be a protective factor was incorrect. The applicant contended that this finding ignored other protective factors available to the applicant. There are two answers to this criticism. First, the Tribunal explained its view that Mr Cinar’s opinion about the partner as a protective factor was incorrect. At [108] to [113] the Tribunal set out the evidence given by the applicant’s partner, concluding (at [114]) that overall it was “not confident that [the applicant’s partner] would hold the Applicant accountable for his behaviour or that she would encourage him to abstain from drugs and alcohol”. Secondly, the Tribunal did not ignore the other protective factors. It referred to them in the context of its consideration of the Psychologist’s Report and again at [115] to [118]. The Tribunal concluded (at [118]) that it “was not confident that [the applicant’s] family could persuade [the applicant] to engage in an appropriate treatment or abstain from substance abuse or crime if [the applicant] is not minded to do that for himself”.

69    It follows that there was nothing irrational or illogical about the Tribunal’s concerns about Mr Cinar’s opinion about whether the applicant was likely to re-offend by reference to his protective factors. Rather, the Tribunal considered the evidence and did not accept that one of those protective factors would, in the case of the applicant’s partner, or could, in the case of the applicant’s family, provide sufficient support.

70    As the Minister submitted, the Psychologist’s Report was a piece of evidence that the Tribunal was required to consider, assess and weigh as part of its review function. It was not required to accept it uncritically. It was entitled to test the basis on which it was prepared and consider it in the context of other evidence that was before it. That is what it did. The applicant seeks to impugn the Tribunal’s assessment of the evidence and the weight given to it. But that is not a proper basis upon which jurisdictional error can then be found in relation to the Tribunal’s decision: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [36]-[37].

71    Contrary to the applicant’s submission, the Tribunal was not required to accept the Psychologist’s Report absent compelling justification. When the Tribunal’s reasons are read as a whole it is clear that it had a rational basis for coming to the view that it did about aspects of that report and for its conclusion that it not give the report much weight. The Tribunal did not reject the Psychologist’s Report but explained why it afforded it a lesser weight. It was ultimately a matter for it to form a view about the Psychologist’s Report and the opinions expressed in it.

72    The Tribunal concluded that the applicant posed a present and serious risk to the Australian community and was satisfied that he is a danger to the Australian community. It is not the case, as the applicant contends, that in reaching its conclusion the Psychologist’s Report did not factor into its assessment of the likely risk of the applicant re-offending in any meaningful way. A review of the Tribunal’s reasons as a whole shows that the Tribunal considered a range of evidence that the applicant relied on including the Psychologist’s Report. In relation to that report the Tribunal concluded, for logical and rational reasons, it would not give it much weight.

conclusion

73    The applicant has not made out his ground of review. It follows that his application should be dismissed. As he has been unsuccessful, the applicant should pay the Minister’s costs, as agreed or taxed.

74    I will make orders accordingly.

Associate:

Dated:    24 November 2022