Federal Court of Australia

BGW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1569

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for judicial review be dismissed.

2.    The Applicant pay the First Respondent’s costs, to be assessed by a Registrar on a lump sum basis, if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

1    The Applicant seeks judicial review pursuant to s 476A of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal dated 15 March 2022, made under s 500 of the Act. The Tribunal affirmed a decision of a delegate of the Minister, made under s 65 of the Act, to refuse the Applicant’s application for a protection (Class XA) (Subclass 866) visa on the basis that the Applicant did not satisfy the criterion in s 36(1C). The delegate considered that the Applicant, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

2    Before this Court, it was conceded that the Applicant had been convicted by a final judgment of a particularly serious crime. The issue was whether, in concluding that the Applicant is a danger to the Australian community, the Tribunal fell into jurisdictional error.

BACKGROUND

3    The Applicant is a citizen of Afghanistan and was born in September 1996.

4    On 7 June 2010, the Applicant was granted a Global Special Humanitarian (Class XB) (Subclass 202) visa and arrived in Australia in October 2010.

5    On 30 July 2014, the Applicant pleaded guilty to a charge of robbery while armed with a dangerous weapon and was sentenced to 16 months’ imprisonment.

6    Following his release, the Applicant was convicted of other offences including traffic infringements, failure to comply with correctional orders and possession of prohibited drugs.

7    On 28 March 2017, the Applicant was charged with assault occasioning actual bodily harm.

8    On 8 August 2019, a delegate of the Minister cancelled the Applicant’s Special Humanitarian visa under s 501(3A) of the Act.

9    On 9 September 2019, the Applicant pleaded guilty to and was convicted for common assault. He was sentenced to three months’ imprisonment. The charge of assault occasioning bodily harm was withdrawn.

10    On 24 October 2019, the Applicant applied for a protection visa.

11    Between September 2019 and December 2020, the Applicant was involved in a number of altercations with fellow detainees in immigration detention.

12    On 8 April 2021, a delegate of the Minister refused the Applicant’s application for a protection visa. Although satisfied that the Applicant was a person to whom Australia had protection obligations, the delegate considered the Applicant, having been convicted by a final judgment of a particularly serious crime (armed robbery), is a danger to the Australian community.

13    On 14 April 2021, the Applicant applied to the Tribunal for review of the delegate’s decision. On 15 March 2022, the Tribunal affirmed the delegate’s decision.

LEGISLATIVE PROVISIONS

14    Section 36 of the Act relevantly provides:

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    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.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‐citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

15    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.

16    “Serious Australian offence” is defined in s 5 of the Act in the following terms:

serious Australian offence means 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.

17    Before this Court, it was not disputed that the Applicant satisfied s 36(1B) and at least one of the criteria in s 36(2). The issue concerned whether the Applicant satisfied s 36(1C). In that respect, it was also not disputed that the Applicant satisfied s 36(1C)(a) and had been convicted by a final judgment of a particularly serious crime. The issues related only to whether the Tribunal had committed jurisdictional error in coming to its conclusion that the Applicant did not satisfy s 36(1C)(b) by reason of being a danger to the Australian community.

TRIBUNAL REASONS

18    In considering the issue of whether the Applicant is a danger to the Australian community, the Tribunal applied what it termed (at [25]) the “definitive guide” found in the reasons for decision of the Honourable B Tamberlin QC, then Deputy President of the Tribunal, in WKCG v Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434, where the following factors were set out as relevant to assessing whether a person constitutes a danger to the Australian community (at 438 [26]):

(1)    the seriousness and nature of the crimes committed;

(2)    the length of the sentence(s) imposed;

(3)    any mitigating or aggravating circumstances;

(4)    the criminal record in totality — including the extent and nature of any prior convictions and the period over which they took place;

(5)    the risk of re-offending and recidivism;

(6)    the likelihood of relapsing into crime; and

(7)    any prospects of rehabilitation.

19    The Tribunal then proceeded to consider each of these factors in turn.

20    In the course of considering the first factor, the Tribunal made the following findings (at [36]-[41]) (footnotes omitted):

36.    Second, and redolent of much of the Applicant’s unlawful conduct, was his conviction for common assault committed in March 2017. I say “redolent” because this offending was committed in company with another co-offender. There is a statement of agreed facts, duly signed by the Applicant and his then legal representative on 9 September 2019. The Applicant took it upon himself to harass a group of females during a train ride. His behaviour was sought to be non-violently curbed by two people who, in turn, became victims of his offending. Those victims were then aged 15 and 20 years respectively. As mentioned, this offending was committed in company with a co-offender, “Mr P”.

37.    After seemingly taking offence at the victims’ attempt to curb the Applicant’s conduct, the relevant NSW Police Facts Sheet records that the Applicant induced both victims into a local park. The Applicant then proceeded to kick the 15-year-old victim on the inside of his leg causing him to fall to the ground. The 20-year-old victim then sought to intervene in the melee between the Applicant and the 15-year-old. In so doing, the 20-year-old victim became the subject of a closed fist punch from Mr P which resulted in that 20-year-old victim experiencing immediate pain and dizziness.

38.    The melee between the four of them continued thus:

“During this, [Mr P] ran towards [the Applicant] and [the 15-year-old victim] who were still on the ground and [Mr P] kicked [the 15‑year-old victim] in the back of his body. While this was occurring, [the Applicant] and [the 15-year-old victim] were grappling on the ground. [The Applicant] used his knees to pin the arms of [the 15‑year‑old victim] and then punched him in the face numerous times where [the 15-year-old victim] lost consciousness momentarily and was unable to defend himself.”

39.    It should also be noted that the NSW Police Facts Sheet records these additional things:

“The offence considered in this matter is again one of extreme violence perpetrated on a random unsuspecting member of the public. The accused [the Applicant] and his co‑accused [Mr P] attacked two boys, much smaller in size than them, one of whom was 6 years their junior and wearing a school uniform.

…

As a result of the assault by both of the accused persons, [the 15‑year‑old victim] spent two nights in Westmead Hospital. He was found to have a large amount of soft tissue injury and has required a neck brace since the date of the assault. For several nights following the assault, the victim was spitting up blood and felt a constant feeling of nausea and headaches.”

40.    The learned sentencing Magistrate noted the following in her sentencing remarks:

“So clearly the behaviour on this occasion was absolutely unacceptable, directed towards kids who were much younger than you...you did not like the tone that was being displayed to you but you are reaching [the age] where that sort of behaviour is pretty childish, quite frankly, and it sees you in custody […] [Y]ou are very young. It is about time that you started making much smarter decisions […] Clearly the drug issue is something you are going to have to address ... Nobody can stop the drugs except you and if you want to keep away from gaol that is something you need to address immediately.”

41.    This conduct by the Applicant, committed in company with Mr P, could have, quite conceivably, resulted in a catastrophic outcome. It was very violent offending by the Applicant and Mr P without any thought about the consequences of their conduct. There is no “discount” or ameliorative factor to be applied in the Applicant’s favour because he committed the offences in company with Mr P. There is no “protagonist” in the offending as between the Applicant and Mr P. The Respondent validly submits that the Applicant’s commission of this offending in company with Mr P is a factor which aggravates the seriousness of the conduct. I find this conduct to be serious in nature.

21    In relation to the factor “any mitigating or aggravating circumstances”, the Tribunal’s reasons included the following (at [54]–[59]) (footnotes omitted):

54.    A significant level of the Applicant’s offending was committed in the company of another person. This is postulated before the Tribunal in two ways. First, on behalf of the Applicant there is a suggestion that he had a propensity to act as a “follower” and to act as a willing participant in circumstances where he knew the other offender would take the lead. This may be true enough when one has regard to the circumstances of the 2014 conviction for “Robbery while armed with dangerous weapon”. The second and alternative way this element is put before the Tribunal is that, while it may be said the Applicant was a relatively young offender in 2014, by the time he had reached the age of 20 he committed the quite violent attack on the two victims in 2017. There is no suggestion from the circumstances of that offence that the Applicant was in any way a “follower” or secondary offender. During that offending: (1) it was the Applicant who induced the victims into a local park for the purposes of administering physical violence upon them; and (2) it was the Applicant who was urging his co‑offender to repeat and indeed intensify the level of the physical blows on one of the victims.

55.    To my mind, this element of the Applicant being a “follower” and otherwise not a protagonist, can only go so far as a mitigating factor. There is no suggestion that when he acted as a follower, that the principal offender or protagonist forcibly induced him into participating in the unlawful conduct. He may be said to have been a follower as a younger offender but even as an older offender he nevertheless willingly engages with a criminal enterprise, such that any review of his conduct in that criminal enterprise now can only lead to a finding that the Applicant willingly engages in unlawful conduct — even as a bit player — and that he otherwise knows exactly what he is getting himself into. This is evident from his willing participation in the ingestion of two balloons’ full of a substance the nature of which he probably did not even know as a means of a broader enterprise involving the smuggling of that material through the prison system. I have earlier rejected his explanation for this conduct involving a claim that he was threatened into doing this.

56.    On the one hand, the circumstances of the Applicant’s upbringing and early youth in Afghanistan and then Pakistan can be said to have produced elements that could now be said to be causative of some type of psychological symptomatology predisposing him to offend. The difficulty with such a contention is that there is no, as it were, “connecting bridge” of a clinical nature demonstrating exactly how those earlier elements have now manifested into causative elements behind his offending. Accordingly, the Applicant’s age, background and life experiences prior to arrival in Australia cannot attract any significant level of weight as mitigative elements behind his offending.

57.    In terms of aggravating factors, the Respondent has helpfully listed six such factors, each of which warrants analysis and discussion. First, it is said the conduct around the conviction for “Robbery while armed with dangerous weapon” is an aggravating feature of the Applicant’s unlawful conduct because it involved a dangerous weapon comprising the imitation firearm. As noted by Judge Sides, the incident would have been traumatic for the victim and even though the gun was not capable of a mortal effect, this was something not necessarily known by the victim. The further difficulty with offences involving imitation firearms is that some victims are not as compliant as this particular one. This type of offending could conceivably result in the unregulated discharge of a firearm by a duly armed and not compliant victim. That, in turn, could realistically draw members of the public into its orbit.

58.    Second, it is said that the armed robbery on the petrol service station store and the common assault offences against the victim in the park were committed in company. On one view, this contention may be correct because offences committed in company are often seen as involving a broader scope of criminal activity and misadventure than a single offender acting alone. As against that, there is the reality that the Applicant was only too willing to commit offences on his own. That said, it can be safely found that he has little or no compulsion in involving himself in an opportunity involving criminal conduct in which a specific role is assigned to him. Third, it is said that the 2017 common assault convictions involve the Applicant targeting a victim who was actually a minor wearing a school uniform. To my mind, it can be safely found that the Applicant deliberately targeted a victim whom he considered to be vulnerable and likely to submit to whatever the Applicant required of that victim.

59.    Fourth, it is said that the 2017 common assault convictions [involve] the Applicant taking umbrage at having his behaviour called out because the victims did not appreciate him harassing females on a train. The significant part of this aggravating feature is, I think, a reality that the Applicant was not prepared to tolerate external criticism and/or regulation of his general conduct. He was not prepared to tolerate the views of others and sought to express this intolerance by otherwise unprovoked and quite dangerous violent offending against those victims.

60.    Fifth, a further aggravating element in this Applicant’s offending is said to be found in his failure to cease offending despite the imposition of a 16-month head custodial term in 2014. I think there is merit in this aggravating factor because it informs the totality of the Applicant’s offending. If he did not experience a deterrent effect in 2014 from a not-inconsiderable custodial term and continued to offend, how can it now be said his recidivist risk is of a sufficiently low level such as to no longer represent a danger to the community? This is especially so when one has regard to his extraordinary conduct while in criminal custody (and this is the sixth aggravating feature identified by the Respondent) involving his ingestion of two balloons’ full of a substance which was unknown to him.

61.    Taken in total, I am of the view that the abovementioned aggravating factors are of a nature necessarily leading to a finding that they outweigh any claimed mitigating factors behind the Applicant’s offending. The aggregate of both mitigating as opposed to aggravating factors necessarily results in a finding that the Applicant’s offending has indeed been of a serious nature.

22    The Tribunal considered “the risk of re-offending and recidivism” at [67]–[101] of its reasons. The Tribunal observed (at [69]):

There are little or no other identifiable factors militating in favour of him representing a low recidivist risk in future. Indeed, there are elements which indicate a heightened recidivist risk or, put at its best, an unknown recidivist risk. I have earlier referred to his numerous breaches of bail. Perhaps a more concerning aspect of these breaches is the Applicant’s propensity to further offend while on bail. Significantly, he has re‑offended while on bail and has multiple convictions for breaching bail. It is also notable that he repeatedly breached the bail granted to him after his offending in 2017 that resulted in the conviction for “Common assault”.

23    The Tribunal considered the Applicant’s responses given in cross-examination in relation to the breaches of his bail conditions in 2013, 2014 and in later years (at [70]–[72]).

24    The Tribunal then considered the Applicant’s conduct in both criminal custody and immigration detention and observed (at [73]):

The Applicant’s conduct during his time in both criminal custody and immigration detention is such as to point to (at best) an unresolved recidivist risk. In the very environments in which he has been placed because his behaviour in the general community has been unacceptable (indeed unlawful) the Applicant has nevertheless displayed conduct which is clearly demonstrative of a readiness and willingness to re-offend. The material contains reference to incidents both in criminal custody and immigration detention that, although not the subject of any criminal conviction and sentence, are nevertheless demonstrative of a propensity towards unlawful conduct.

25    The Tribunal referred to material relating to incidents during the Applicant’s time in criminal custody in July 2015 and August 2016 and to incidents during the Applicant’s time in immigration detention in September 2019, March 2020, August 2020 and December 2020 (at [74]–[88]).

26    The Tribunal recorded the following findings (at [89]–[92]):

89.    The Applicant’s purported explanation or factual reconciliation of the incidents in both criminal custody and immigration detention is both lacking in credibility, uncorroborated and otherwise unsubstantiated. His version of events is nearly always squarely at odds with what independent prison officers and/or immigration detention officers observed and recorded. He never identifies himself as the aggressor nor makes any limited or other concession to the effect that, for example, a momentary lapse of reason or of self-control caused him to do what is recorded in any of these incident reports. On each occasion either the relevant independent observers have gotten their story wrong, or the Applicant proposes a completely implausible re-statement of what he says actually occurred.

90.    At the risk of repeating myself, the Applicant’s conduct in the closed confines of both criminal custody and immigration detention does not bode well for his prospects of maintaining a low recidivist risk if returned to the unsupervised and uncontrolled circumstances of the general community.

91.    There is little or no evidence of rehabilitative efforts by the Applicant as a means of identifying pre-dispositive factors behind his offending. The overwhelming theme of his evidence is to deny and obfuscate the facts instead of being able to point to positive steps he has taken to remove elements that have previously caused him to offend. He has not explained why he will readily resort to a violent imposition of his will upon a situation that he regards as either difficult to resolve or that is in some other way and impasse to him. It is difficult to find any evidence — written or oral — from this Applicant convincingly suggestive of any remorse or regret for his conduct. He has not accepted virtually any of the circumstances of his wrongdoing.

92.    I am hard-pressed to find anything in the totality of the Applicant’s evidence to satisfy me that, were he returned to the community, his approach to difficult situations will be anything different than what it was prior to his removal from it. It therefore follows that a finding can be safely made that this Applicant’s recidivist risk is absolutely no different to what it was at the time of his most recent removal from the Australian community. Accordingly, the Applicant’s recidivist risk can only point to him representing an ongoing and unresolved danger to the community were he returned to it.

27    The Tribunal’s conclusions were summarised at paras [100] to [101]:

100.    I have sought to review and analyse the various components of the evidence speaking to the Applicant’s recidivist risk. I summarise my findings thus:

•    The Applicant’s issues with illicit drugs remain unresolved. The extent to which difficulties with illicit drugs may have predisposed him to re‑offend remains unknown. The likelihood of his returning to a pattern of abusing those substances remains unknown and has not been the subject of any clinical assessment;

•    The Applicant has a demonstrated pattern of conduct pointing to a failure and refusal to observe the requirements of lawful authority be it in the form of a grant of bail or with reference to driver licence requirements for the operation of a motor vehicle;

•    The pattern of his conduct in both criminal custody and immigration detention points to an unresolved propensity to refuse submission to lawful authority and to otherwise resolve impasses and difficulties in his life with anything other than physical violence upon those with whom he does not agree;

•    It is difficult to accept that he has put his pattern of offending behind him in circumstances where, during his time in criminal custody he readily involved himself in the ingestion of two balloons containing a substance or substances that were most probably not even known to him. It is likewise difficult to accept that he was caused to do so as a result of threats made to him;

•    Apart from the now nearly eight-year-old observations of the clinical psychologist Mr Peter G Champion, there is little or nothing by way of more recent independent clinical evidence addressing: (1) the elements of the Applicant’s psychological symptomatology predisposing him to offend; (2) the extent to which those issues are or have been the subject of some type of remedial management and control; and (3) the likely prognosis for this Applicant in terms of managing those causative elements behind his past offending;

•    There is concerning and convincing police intelligence about the Applicant’s involvement in organised criminal groups. The police are not just saying things on paper about the Applicant. They have, via a duly executed search warrant, located him at a facility connected to at least one of the organised criminal groups with which the Applicant is said to have been associated. His explanation for being located at the basement of a specific locality, being the subject of the search warrant, on [date redacted], is unconvincing, obfuscatory and implausible;

•    Equally concerning is the “Security Risk Assessment” prepared by Serco contemporaneous with the Applicant’s receipt into immigration detention. The narrative beneath the hearing “Intelligence Comments” is self-explanatory. The assessment culminates in unanimous “high” assessments for the Applicant’s risk for “aggression/violence”, “criminal profile”, “DSP placement risk” and “DSP escort risk”.

•    The Applicant’s purported severing of ties with such organised criminal groups (as claimed in his written material) was, to my mind, fatally challenged by his acceptance in cross-examination that he has received at least one visit from a member of those groups while he was in immigration detention in Sydney.

101.    I am therefore satisfied that the Applicant’s recidivist risk is now absolutely no different to what it was at the time of his most recent removal from the Australian community. The unknown and unresolved level of that recidivist risk means that there can be no other finding than that he constitutes a danger to the Australian community.

28    In relation to the Applicant’s prospects of rehabilitation, the Tribunal noted (at [102], [105]):

102.    I have already mentioned the absence of any recent independent and expert clinical opinion addressing any aspect of the Applicant’s rehabilitation. The totality of his evidence — both oral and written presently before the Tribunal is indicative of a person who has failed to experience any noticeable level of remorse or regret for his unlawful conduct in this country. Due to the absence of any evidence of his engagement with any rehabilitation process, I must find that his prospects of rehabilitation are poor.

…

105.    To the extent the Applicant may now say he wishes to change his ways and lead a more regular and sober lifestyle, that contention is difficult to sustain in circumstances where: (1) he has been unable to lead such a life in the closed environments of criminal custody and immigration detention; (2) while in his written material he purports to disassociate from criminal elements, there are at least two very credible intelligence reports connecting him to such groups; and (3) he accepted in cross-examination that he has received at least one visit from a member of such group while in immigration detention.

GROUNDS OF REVIEW

29    The Applicant raised two grounds of review:

(1)    The Tribunal erred in the exercise of its jurisdiction by proceeding to review the delegate’s decision as if the Applicant had been convicted of the offence of assault occasioning actual bodily harm.

(2)    The Tribunal failed to exercise its jurisdiction or erred in the exercise of its jurisdiction by overlooking and/or ignoring evidence of the Applicant’s remorse.

Applicant’s Submissions

30    In submissions, it became apparent that the first ground of review related to the regard the Tribunal had to a NSW Police Facts Sheet relating to the charge of assault occasioning bodily harm which was not pursued. The Applicant’s contention was essentially that the Tribunal’s reasons demonstrate a failure to appreciate that the Facts Sheet related to allegations made but never proven or conceded, and the Tribunal accordingly had erred in relying on the material in that Facts Sheet as if it contained a record of established facts. This error, it was contended, was material.

31    By his second ground, the Applicant contended that the Tribunal’s findings relating to the absence of evidence of remorse were “simply wrong” and those erroneous findings were material, giving rise to jurisdictional error. The Applicant referred to the following as evidence of his remorse:

(a)    When being sentenced for the offence of armed robbery, Judge Sides took into account that the Applicant was remorseful and specifically referred to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits a sentencing Judge to have regard to remorse only if:

(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)    the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

(b)    In respect of the offence of common assault, the Applicant wrote a letter to the Presiding Magistrate dated 5 September 2019 expressing his remorse to the victim and the community.

(c)    At the conclusion of his oral evidence before the Tribunal, the Applicant expressed that he was deeply remorseful about his bad decisions and mistakes.

(d)    The Applicant’s submissions referred to statements of remorse in the Applicant’s Statement of Facts Issues and Contentions. The Applicant’s written submissions to this Court referenced, in a footnote, a letter from the Applicant’s representatives to the Department dated 13 July 2020. That letter, expressing the Applicant’s regret and remorse in relation to his most recent drug offence, responded to a request from the Department for information, issued under s 57 of the Act.

Minister’s Submissions

32    In relation to ground one, the Minister contended that the Tribunal had correctly understood that the Applicant had been convicted of common assault and not assault occasioning bodily harm, referring to Tribunal’s reasons at [31], [36], [58] and [59]. The findings made by the Tribunal at [38] were supported by an Agreed Statement of Facts signed by the Applicant on 9 September 2019 relating to the charge of common assault to which the Applicant pleaded guilty on that date. The Tribunal’s findings at [37], in so far as they related to the Applicant, were also supported by the Agreed Statement of Facts. The matters recorded at [39] of the Tribunal’s reasons were put directly to the Applicant in cross‑examination before the Tribunal. The Applicant accepted in cross-examination that the incident was extremely violent against a person who was a child at the time, and also appeared to accept that the injuries sustained by the victim caused the victim to spend two nights in hospital.

33    In the course of the hearing before this Court, the Minister conceded that the matter set out at in the second part of the last sentence of Tribunal reasons [54] did not form part of the Agreed Statement of Facts and was not put to the Applicant in cross‑examination, and that, to the extent the Tribunal had regard to that matter, it was an error.

34    However, the Minister submitted that the error was not material but was an error of fact made within jurisdiction. It was clear from the Tribunal’s reasons that the Tribunal had regard to a number of aggravating and mitigating factors (at [54]–[60]) before concluding (at [61]) that the aggravating factors outweighed the mitigating factors. It cannot be said, having regard to the Tribunal’s analysis, particularly at [55], that the error of fact might possibly have changed the conclusion.

35    In relation to ground two, the Minister conceded that there was no express reference to the posited statements of remorse relied up on by the Applicant. However, the material cannot be said to have been overlooked. The Tribunal expressly referred to the sentencing remarks of Judge Sides. The letter of 5 September 2017 was referred to by the Minister in closing submissions before the Tribunal and submitted to be a statement which “purported to show remorse”. The Tribunal’s findings were not that the Applicant had not expressed some form of remorse. Properly understood, it was a finding that the Tribunal did not accept the expressions of remorse as convincing.

36    Furthermore, when one looks at the Tribunal’s findings on recidivist risk, the Tribunal made no reference to, and therefore placed no reliance on, any presence or absence of an articulation of remorse by the Applicant. If there was an error by the Tribunal, it was not material to the Tribunal’s findings.

CONSIDERATION

Ground One

37    The Minister conceded, in oral submissions, that the Tribunal erred at [54] in having regard to matters relating to the background to the assault charge that were recorded in the Facts Sheet but did not form part of the Agreed Statement of Facts and which were not put to the Applicant in cross-examination.

38    Although the Minister made this concession, the Minister submitted that the Tribunal was not prohibited from having regard to the Facts Sheet. The error appeared to relate more to the manner in which the Tribunal relied upon the Facts Sheet. The Facts Sheet related to the greater charge of assault occasioning actual bodily harm. This charge was dropped and the Applicant convicted of the lesser charge of common assault. That conviction was supported by the Agreed Statement of Facts and not by the Facts Sheet. The matters recorded in the Facts Sheet were no more than unproven allegations of fact but were referenced by the Tribunal as proven or conceded facts.

39    The error made by the Tribunal was an error of fact. The issue is whether that error is a jurisdictional error. Jurisdictional error arises where a decision is made outside of the scope of the authority conferred by statute. As the High Court said in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at 132 [23] (Kiefel CJ, Gageler and Keane JJ), jurisdiction, in this context:

encompasses all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have “such force and effect as is given to it by the law pursuant to which it was made”.

(citations omitted)

40    The question that arises is whether and to what extent a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 16 [52] (Black CJ, French and Selway JJ). In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548–‍9 [35]–‍[36]):

A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

41    It is not sufficient for the Applicant to contend that the error made by the Tribunal was made in its course of reasoning. A mere error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law is not a jurisdictional error: NABE 144 FCR at 16–7 [52]–[54] and 22 [68] (Black CJ, French and Selway JJ).

42    It has been said that a mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error: NABE 144 FCR at 16 [53] (Black CJ, French and Selway JJ). As the Full Court said in CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493 at 503 [31] (Wigney, Jackson and Snaden JJ):

A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647–648 [130] (Crennan and Bell JJ…), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, 134-135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ).

43    At the very least, the error of fact must be one that is a critical step in making the decision under review: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at 407 [19] (Mansfield, Selway and Bennett JJ); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; (2013) 140 ALD 78 at 94 [113] (Barker J).

44    In the present context, the statutory question concerned the danger the Applicant posed to the Australian community. It is necessary to consider how a consideration of the Facts Sheet material related to the statutory question.

45    The Tribunal referred to the decision of Tamberlin DP in WKCG 110 ALD 434 as providing a definitive guide to determining the statutory question of whether a person is a danger to the Australian community. For present purposes, the relevant passages from the decision in WKCG 110 ALD 434 are (at 438 [25]–[27]) (emphasis in original):

[25]    The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

[26]    Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

[27]    The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38[;] ALD 100:

…

Rehabilitation is never certain. One cannot [predicate] of an offender that he will not fall again[,] whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk[,] and to assess whether a particular applicant in the particular circumstances of his case[,] is at an unacceptable level of risk.

46    The statutory question requires an assessment as to whether the Applicant is a danger to the Australian community. This requires an assessment going to the future conduct of the Applicant. The factors identified by Tamberlin DP are no more than some circumstances that may likely be relevant to making that assessment. They are not a checklist of factors to be applied as a rigid formula. None of the factors identified in the first sentence at WKCG 110 ALD 434 at 438 [26] is an end in and of itself. Each is part of making an assessment of future conduct. Past conduct, particularly that relating to the nature of and circumstances surrounding prior criminal conduct, may be relevant to assessing future conduct but the denial of a protection visa is not a means of punishing prior conduct. As Tamberlin DP observed (albeit by reference to the language of Art 33(2) of the Convention Relating to the Status of Refugees), in making the assessment required by s 36(1C)(b), the risk of reoffending, recidivism and the likelihood of relapsing into crime is a primary consideration.

47    In undertaking the statutory task, the Tribunal must necessarily have regard to the facts and circumstances which it considers bear on the prospects of future behaviour. The assessment of future conduct requires a consideration of the Applicant’s character. Past conduct may provide a guide as to likely future conduct. As has been recognised in the context of a fear of persecution (by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)), determining what is likely to happen in the future will invariably require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (see also Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at 91 [36] (Charlesworth J, Flick J concurring at 83 [1], Perry J concurring at 83 [2]).

48    It is then necessary to consider the Tribunal’s process of reasoning. The error conceded to have been made by the Tribunal at [54] was made under the heading it labelled as “[a]ny mitigating or aggravating circumstances” and formed part of the Tribunal’s consideration of the Applicant’s character and inclination towards future behaviour. That consideration involved a detailed analysis of the totality of the Applicant’s conduct. The error at [54] of the Tribunal’s reasons was part of its consideration of whether the Applicant was a “follower” or secondary offender. The error was one of two circumstances identified by the Tribunal that, in respect of the assault offence, the Applicant was not a secondary offender. The Tribunal’s ultimate conclusion was that even when a follower or secondary offender, the Applicant willingly engages in unlawful conduct (Tribunal reasons at [55]). There was no suggestion that that conclusion was irrational or illogical.

49    In my view, this ground of appeal cannot be sustained. The Tribunal’s conclusion about the Applicant being a willing participant in unlawful conduct was based on there being no suggestion that the Applicant had been forced by someone else into so participating. The error made did not relate to a suggestion that the Applicant had been a reluctant or unwilling participant in a criminal endeavour. The error made at [54] of the Tribunal’s reasons did not lead to or form a part of the process of reasoning leading to the conclusion at [55]. An examination of the Tribunal’s reasons does not support a conclusion that the error of fact which it made at [54] of its reasons resulted in jurisdictional error.

50    The error of fact made by the Tribunal did not result in a breach of the exercise of its power. It was an error made within the scope of its authority. Accordingly, the issue of materiality (as further explained most recently by the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26) does not arise.

51    The Court would dismiss ground one.

Ground Two

52    The task for the Tribunal was to form a view on whether the Applicant is a risk to the Australian Community. It was required to form that view on the basis of the material before it. In reaching that view, the Tribunal considered the risk of the Applicant reoffending and the likelihood of the Applicant relapsing into crime. In so doing, the Tribunal formed a view about the Applicant’s level of remorse or regret on the basis of the totality of the material before it. An examination of the Tribunal’s reasons discloses that the Tribunal reached its views about the Applicant’s level of remorse based on the Applicant’s conduct in custody and in immigration detention, and evidence of police intelligence about the Applicant’s connections to organised criminal groups. In particular, that another decision‑maker at an earlier point in time, in another context (namely, the sentencing judge in 2014) formed a particular view, based on facts and circumstances that were a subset of the facts and circumstances before the Tribunal, does not demonstrate that the Tribunal reached its conclusion by overlooking cogent and significant evidence of the Applicant’s remorse.

53    The fact that the Tribunal dismissed the Applicant’s evidence of remorse as unconvincing, without itemising each piece of rejected material does not demonstrate error. The Full Court has warned against drawing an inference that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “[i]t is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [46]).

54    As the Minister correctly submitted in oral submissions, it may well have been preferable for the Tribunal to directly and explicitly address the matters set out at para [31], above. However, whilst preferable, the Tribunal’s failure to do so in the context of its reasons did not amount to jurisdictional error.

55    The Court would dismiss ground two.

DISPOSITION

56    For the foregoing reasons, the Applicant’s application for judicial review will be dismissed. The Applicant will be ordered to pay the First Respondent’s costs, to be assessed by a Registrar on a lump sum basis, if not agreed.

Associate:    

Dated:        22 December 2022