Federal Court of Australia

Faingataa v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 505

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Viliami Tauataina Faingataa is a Tongan national. He first arrived in Australia in 1988 at the age of 26. On 12 December 2011, Mr Faingataa was convicted of conspiring to import a commercial quantity of cocaine. On 27 April 2012 he was sentenced to a term of imprisonment of 18 years and one month, backdated to 2 December 2010 and given a non-parole period of 10 years and 11 months, making him eligible for parole on 1 November 2021. At the time of the sentence Mr Faingataa was the holder of a Class WC Subclass 030 Bridging C visa.

2    Two weeks before the non-parole period was due to expire, a delegate of the Minister cancelled Mr Faingataa’s visa under s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) relevantly imposes an obligation on the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record within the meaning of s 501(6)(a), and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against an Australian law. Among other reasons, a visa holder has a substantial criminal record, and therefore does not pass the character test, if the person has been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c)). In the event that the Minister makes a decision to cancel a visa under s 501(3A), the Minister is obliged to give notice to the person and invite the person to make representations about revocation (s 501CA(3)). Section 501CA(4) gives the Minister a discretion to revoke the cancellation decision if the person makes representations in accordance with the invitation and the Minister is satisfied either that the person passes the character test or there is another reason why the cancellation decision should be revoked. Following an invitation from the Minister, Mr Faingataa made representations about revocation within the requisite period and in the specified manner, but a delegate of the Minister was not satisfied of either matter and so refused the application for revocation.

3    Mr Faingataa then applied to the Administrative Appeals Tribunal for a review of that decision on its merits but the Tribunal affirmed the delegate’s decision. Now Mr Faingataa seeks judicial review of the Tribunal’s decision.

Relevant considerations in the exercise of the power to revoke a cancellation decision

4    Section 499 entitles the Minister to give written directions to decision-makers having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers. If such directions are given, a decision-maker, including the Tribunal, is bound to comply with them. Directions under s 499 in relation to visa refusal and cancellation under s 501 and revocation of a mandatory visa cancellation under s 501CA have been issued for many years. They include a series of “primary” and “other” considerations which decision-makers must take into account in deciding whether to revoke a cancellation decision. The most recent iteration is Ministerial Direction no. 90.

5    The purpose of the Direction, stated in its preamble, is to guide decision-makers in the performance of their functions or the exercise of their powers. The framework within which the decision-makers should approach their decision-making task is contained in a set of principles, listed in para 5.2. Those principles are:

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(5)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

6    The principles are reflected in the primary considerations decision-makers are required to take into account in making their decisions, including decisions about whether or not to revoke a cancellation decision under s 501CA. The primary considerations are set out in para 8 of the Direction. They are:

(1)    the protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia; and

(4)    the expectations of the Australian community.

7    Decision-makers are required to give “particular regard” to the first principle when attending to the matter of the protection of the Australian community. They are also required take into account the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community if the non-citizen were to commit further offences or engage in other serious conduct.

8    In considering the nature and seriousness of the conduct, decision-makers must have regard to a range of factors including (relevantly) the sentence imposed by the courts for a crime or crimes; the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; and whether the non-citizen provided false or misleading information to the Minister’s Department, including by not disclosing prior criminal offending. See para 8.1.1.

9    The present application is concerned with the Tribunal’s evaluation of the risk to the Australian community if Mr Faingataa were to reoffend. That is the subject of para 8.1.2:

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non-citizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

(Emphasis added.)

The Tribunal hearing

10    At the hearing before the Tribunal, Mr Faingataa was represented by solicitor and counsel. His counsel was Dr Donnelly, an experienced barrister who professes considerable expertise in migration law. Dr Donnelly called nine lay witnesses (including Mr Faingataa) over two days (14 and 15 September 2022). In addition, numerous testimonials were received into evidence from friends, family, and others (including two prison chaplains and a counsellor at the immigration detention centre) attesting to Mr Faingataa’s essentially good character, his remorse, and his reformation while in custody.

11    The Tribunal was pressed for time. The Senior Member noted at the outset of the hearing that the decision had to be delivered “by Friday”. Friday was 16 September 2022 — the day after the hearing concluded. Presumably the deadline was brought about as a result of the operation of s 500(6L) of the Migration Act which relevantly provides that, if the Tribunal has not made a decision in relation to the decision under review within a period of 84 days after the day on which the applicant was notified of the decision, it is taken, at the end of that period, to have made a decision under s 43 to affirm the decision under review.

12    Mr Faingataa was notified by email at 11:39 am on 16 September 2022 that the Tribunal had decided to affirm the decision under review. Reasons were published a little over five weeks later, on 26 October 2022.

13    The evidence before the Tribunal relevantly included two expert reports. The first was a “pre-release report” dated 19 July 2021, signed by Matthew Fernandez, a Community Corrections Officer, which was prepared in advance of the parole hearing and recommended Mr Faingataa’s release on parole. The report included a supervision plan to mitigate the risk of reoffending if parole were granted. The parole conditions that were ultimately imposed were based on the recommendations in that report.

14    Mr Fernandez reported that Mr Faingataa’s risk of reoffending had been assessed according to the Level of Service Inventory–Revised (LSI-R) as “medium–low”. The Tribunal took that assessment to have been carried out some nine years earlier, in 2012 (about four months after Mr Faingataa had been sentenced) (at [79]).

15    In his “overall assessment” Mr Fernandez wrote:

Due to Mr Faingataa’s low risk rating, he has not had the opportunity to complete any interventions to address his criminogenic needs. However, he has maintained a positive work history in custody and has not incurred any institutional misconduct charges, indicating his willingness and ability to comply with centre routine.

However, it is noted that he has seemingly maintained contact with an OMCG affiliate during his custodial term and misled Community Corrections in relation to this relationship. Mr Faingataa’s apparent misleading ways may not bode well for his ability to comply with the conditions of his order.

The initialism “OMCG” stands for “Outlaw Motorcycle Gang”.

16    The other expert report was prepared by Lisa Alam (the Alam Report), a psychologist, dated 6 September 2022, prepared at the behest of Mr Faingataa’s lawyers.

17    Ms Alam assessed Mr Faingataa’s risk of reoffending, using the Violence Risk Appraisal Guide – Revised (VRAG-R) assessment guide. She found him to have “a low risk of recidivism, or 3.7% risk after 7 years”. She noted that there were “several significant positive factors” in his favour such as no history of sex offending, a low number of previous admissions to correctional institutions, no “conduct disorder” before the age of 15, no “elementary school maladjustment” and no history of violent crimes.

18    Ms Alam observed that Mr Faingataa was remorseful for his past offences and “seems like a genuine individual who is sincere in his intention to support his daughter and grandchildren and to giving back to the community by volunteering”. She said that his self-assessment that he was “a changed man” due to his devotion to his religion, “seems authentic”.

19    Ms Alam concluded that he has “a low risk of recidivism and a low risk of harm to the Australian community”.

20    She made no reference to the parole conditions and in her oral evidence she was not asked what, if any, difference the fact of parole or the parole conditions would make to her assessment.

The Tribunal’s reasons

21    Given the narrow compass of the judicial review application, it is unnecessary to refer at length to the Tribunal’s reasons. It is sufficient to note that the Tribunal was not satisfied that Mr Faingataa passed the character test and to concentrate on its approach to the first primary consideration in the course of deciding whether there was another reason to revoke the cancellation decision.

22    With respect to the nature and seriousness of Mr Faingataa’s conduct to date, the Tribunal referred to his conviction for conspiring to import a commercial quantity of cocaine, noting that the quantity exceeded 500 kilograms, which it described as “enormous”. In the circumstances, the Tribunal viewed the applicant’s conduct “very seriously”. (at [54]). The Tribunal regarded both the imposition of a custodial sentence and the lengthy term of imprisonment to be significant and a reflection of the objective seriousness of his offending (at [58]). The Tribunal also noted that this was not Mr Faingataa’s first offence. Rather, it remarked that he had “offended periodically” since he arrived in Australia, and that the seriousness of his offending had increased “exponentially” in the time he had been here (at [61]). But it did not consider his repeat offending to have had “an observable cumulative effect” (at [63]). The Tribunal additionally had regard to the provision by Mr Faingataa of false and misleading information to the Minister’s Department on incoming passenger cards on 10 occasions between 2008 and 2010 (at [65]).

23    The Tribunal took the view that the nature and seriousness of the conduct weighed heavily against revocation of the cancellation decision (at [68]).

24    The Tribunal began its consideration of the risk to the Australian community if Mr Faingataa were to commit further criminal or other serious conduct with a reference to para 8.1.2(1) of the Direction (at [69]), noting that “[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable” (at [70]). It noted the terms of para 8.1.2(2) (at [71]), expressing the opinion that the nature of the harm is properly informed by the nature of the offending to date and any escalation in the offending as well as the reduction in the community’s tolerance for harm with the increase in the seriousness of the potential harm (at [72]).

25    At this point the Tribunal summarised the submissions made by Mr Faingataa and on his behalf (at [73]):

The Applicant has submitted that collectively, and upon all the evidence before the Tribunal, that he “is no more than a low risk of reoffending, and at best a remote prospect of reoffending”. The Applicant says that “I do not pose a low risk of reoffending”, which the Tribunal interprets to mean that the Applicant is committed to not reoffending at all.

(Footnotes omitted.)

26    The Tribunal then referred to the information in Mr Faingataa’s personal circumstances form to support his contention that there was no risk of him reoffending (at [74]). Those matters were first, the observation by the sentencing judge that the offence involved “limited planning”, evidenced by the speed with which he was arrested; second, his own observations of offenders coming in and out of prison including those who are addicted to drugs, which he argued, gave him “some insight” into the reason the community was “anti-drugs”; and third, “the devastation and horror” suffered by his family as a result of his “thoughtless, selfish behaviour”.

27    The Tribunal noted that Mr Faingataa’s evidence that he had changed was consistent with the evidence given by members of his family, the prison chaplain, and another witness. The other witness had been a fellow inmate. He provided a letter and statement to the Tribunal and testified to the positive impact Mr Faingataa had had on his life since they met in prison in 2019 when he participated in Mr Faingataa’s “weekly church sessions” (at [75]). The Tribunal also referred to Ms Alam’s observation that Mr Faingataa’s self-report that he was “a changed man” seems authentic, to her conclusions as to the level of risk, and to the assessment of risk made by Mr Fernandez in the pre-release report (at [78]–[79]).

28    The Tribunal concluded (at [80]):

Considering the evidence before it, the Tribunal accepts the evidence that the Applicant has a low risk of reoffending by conspiring to import drugs. However, some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. Given the gravity of the Applicant’s offending, the Tribunal regards the Applicant’s risk of engaging in further criminal or other serious conduct as unacceptable. This consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.

29    Consequently, the Tribunal decided that the first primary consideration — the protection of the Australian community — weighed heavily against revocation of the cancellation decision (at [81]).

30    The Tribunal found that the best interests of minor children in Australia weighed moderately in favour of revocation (at [106]–[107]) but that the expectations of the Australian community weighed heavily against revocation (at [114]–[116]).

31    With respect to the other considerations it regarded as relevant, the Tribunal found that the extent of impediments if removed and the nature, strength and duration of Mr Faingataa’s ties to the Australian community both weighed moderately in favour of revocation (at [123] and [132]).

32    After weighing up all the relevant considerations, the Tribunal found that the combined weight of the first and fourth primary considerations (the protection and expectations of the Australian community) outweighed the other relevant considerations and concluded that there was not another reason to revoke the mandatory cancellation decision (at [136]–[137]).

The judicial review application

33    In his amended originating application Mr Faingataa alleges that two jurisdictional errors were made by the Tribunal. The first, the subject of ground 1 of the application, is that the Tribunal failed to consider and address a clearly articulated argument he made in support of revocation, namely the fact that he had been granted parole by the Parole Board on certain conditions which reduced his risk of reoffending. The second, the subject of ground 2, is that the Tribunal’s assessment of that risk was legally unreasonable in that it decided that he posed an unacceptable risk, based on two expert reports, when neither report provided a rational or logical foundation for the Tribunal’s assessment of the risk. Mr Faingataa seeks orders setting aside the Tribunal’s decision, remitting it for hearing and determination according to law, and for the Minister to pay his costs.

Did the Tribunal fail to consider the Mr Faingataa’s argument concerning the effect of the parole conditions on the risk of reoffending (ground 1)?

34    As is customary in the Tribunal, each party filed a Statement of Facts, Issues and Contentions (SFIC). Neither SFIC was put before the Court. But it appears that no contention was advanced in Mr Faingataa’s SFIC about the effect of parole or the “protective” nature of parole conditions on his risk of reoffending.

35    In his statement to the Tribunal, however, Mr Faingataa asserted his belief that he was “not a material risk of reoffending” if he were to be released into the Australian community and one of several reasons he propounded to support it was that he would be subjected to “very significant parole conditions until at least 2029” and that would be “another very significant deterrent against [him] reoffending”. But he was asked no questions on the subject during his oral evidence (either in evidence-in-chief or in cross-examination) and did not advert to the subject in any of his answers.

36    In closing submissions to the Tribunal, Dr Donnelly referred to “the rather extensive parole conditions” and argued that three aspects of those conditions were important “in terms of risk of recidivism” (at T105–6). The first was that he would be supervised by a parole officer for “a very substantial period of time”. The second was that he would be required to attend financial counselling as directed by the parole officer. The third was the prospect of parole being revoked if he were to reoffend. While he did not say so expressly, the inference he was plainly inviting the Tribunal to draw was that the parole conditions would act as a deterrent or disincentive to reoffending.

37    Mr Faingataa submitted that the Tribunal failed to refer to the deterrent effect of the parole conditions and that was a particularly important omission because the Tribunal’s assessment of risk was based on the pre-release report and Ms Alam’s report, neither of which took into account either the grant of parole or the parole conditions. Mr Faingataa claimed that “the parole conditions point” was a central plank in the argument below, indeed that it was “front and centre” of that argument. He also claimed that it was “a significant and contentious submission”. He argued that the Tribunal could not rationally have concluded that the parole conditions were irrelevant to its assessment of risk and therefore the only possible inference is that the Tribunal overlooked his argument.

38    It is true that in its evaluation of the risk Mr Faingataa posed to the Australian community the Tribunal did not refer to the fact that he had been granted parole, to the conditions of his parole or to Dr Donnelly’s arguments concerning their deterrent or protective effect. Nevertheless, for the following reasons, I am not persuaded that the Tribunal overlooked Mr Faingataa’s argument.

39    First, there is no doubt that the Tribunal was aware that Mr Faingataa had been granted parole, knew the lengthy duration of the parole period, and was alive to the conditions attaching to his parole. It referred to these matters at [31] of its decision record. The parole order was in evidence before the Tribunal. The conditions were extensive. The Tribunal mentioned three of them: that Mr Faingataa not associate with “anyone who uses, possesses, manufactures, traffics or sells a dangerous drug or precursor”, and that he be assessed for “psychological counselling” and attend “financial counselling as directed by [his] parole officer”.

40    Second, after the evidence closed, the Tribunal noted that the parole period was “fairly lengthy” and invited Dr Donnelly to address on the question of the extent to which the parole conditions were protective (at T99.40). Having raised the matter with Dr Donnelly, it is unlikely that the Tribunal would have overlooked his submissions on the subject.

41    Third, Mr Jones of counsel, who appeared for Mr Faingataa on the present application, submitted that what was put to the Tribunal was “a clearly articulated submission that [Mr Faingataa] is no risk, or an immaterial risk, or a remote risk, which is logically anterior to the suggestion that he is a low risk”. I think that puts the submission too highly. Although Dr Donnelly took up the Tribunal’s invitation, he did not submit that the risk of reoffending was non-existent when the fact and/or conditions of parole were taken into account. Rather, he submitted that his risk of reoffending was “no more than low or, at best, remote” (at T105–106). The argument on this application appears to be based on over-zealous scrutiny of the reasons in order to discern an inadequacy from the way in which the reasons were expressed, contrary to the manner in which the reasons of an administrative decision-maker are to be read: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). On a fair reading of the reasons of the Tribunal, it seems to me that the Tribunal was accepting Dr Donnelly’s submission. If, on the other hand, the characterisation of the submission by counsel in this Court is the correct one, by finding that Mr Faingataa was a “low risk of reoffending”, the Tribunal should be taken to have implicitly rejected the submission that the risk of reoffending was remote.

42    Fourth, Dr Donnelly’s argument concerning the effect of parole was one of six “themes” (or reasons) he advanced in support of his contention that the risk of reoffending was low, if not, remote (at T102-105). The other themes were said to be Mr Faingataa’s level of insight into his wrongdoing; his “spiritual awakening” and change in character; the impact of prison itself; his expressions of remorse; and the expert evidence about the extent of his risk. It is difficult to see how a failure to expressly address one argument in support of a submission the Tribunal ultimately accepted could be a jurisdictional error. As Hayne J explained in Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82 at [163], “[t]here is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do”; “incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction”.

43    Fifth, the significance of any particular matter raised in the representations in support of revocation is to be assessed by reference to the way in which the matter is expressed in those representations: Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34](g) (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). While the Full Court in that case acknowledged that the representations as a whole must be taken into account (at [34](e)), it also endorsed two remarks made by Colvin J as a member of the Full Court in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [69]. The first was that not every matter in the representations is a mandatory relevant consideration such that a failure to take a particular representation into account in forming the requisite state of satisfaction would be a jurisdictional error. The second was his Honour’s characterisation of such an approach, namely:

Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.

44    Similarly, in Guclukol v Minister for Home Affairs (2020) 279 FCR 611 at [70] the Full Court (Katzmann, O’Callaghan and Derrington JJ) observed that there was no general principle that in every case the Minister will be taken not to have considered a particular matter raised in representations unless a finding is made in respect of it. As the Full Court went on to explain:

The Minister’s obligation is to give considerations to the representations when ascertaining whether he is satisfied that there is another reason why the cancellation decision should be revoked. It may well be that, where an important and contentious matter is raised, the absence of a finding about it will support an inference that it was not genuinely considered, but that proposition does not hold for other matters which are not contentious or significant.

45    This position was endorsed by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417; 96 ALJR 497 at [71] (Plaintiff M1).

46    Contrary to the submission put by Mr Jones in the present application, the proposition advanced by Dr Donnelly on Mr Faingataa’s behalf concerning the deterrent effect of the parole conditions was not contentious. As I indicated earlier, Mr Faingataa was not challenged in cross-examination on this matter and in closing argument it was readily accepted by the Minister’s representative (see T124.35–45):

Now we accept that a person who is under parole and has conditions attached to it such as Mr Faingataa will have if released, is a deterrent to reoffending. There can’t be any doubt about that. My only submission would be, as experience tells, the fact that someone does have parole conditions, does not stop them reoffending. If Mr Faingataa wanted to reoffend, the simple fact that he has parole conditions would not stop him, it might make it harder, but it would not stop him.

47    Sixth, as I have already observed, the argument concerning the effect of parole was but one of the arguments advanced in support of revocation and only one of the six matters raised in relation to the risk of reoffending. It is trite to observe that the Tribunal is not obliged to refer in its reasons to every argument or piece of evidence to which it had regard: see, for example, ETA067 v Republic of Nauru [2018] HCA 46; 360 ALR 228; 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ). Its obligation is to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”: Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B).

48    If particular evidence is not mentioned in the Tribunal’s reasons it does not necessarily mean that the evidence was overlooked. The Tribunal might have considered the matter but given it no weight and therefore not relied on it to reach its findings of material fact. See Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ). See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Kiefel J). The weight to be afforded to the representations was a matter for the Tribunal; it was not obliged to “make actual findings of fact as an adjudication of all material claims”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403; 96 ALJR 13 (Viane 2021) at [14] (Keane, Gordon, Edelman, Steward and Gleeson JJ); Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). Deciding whether it was satisfied that there was “another reason” to revoke the cancellation decision “might be the product of necessary fact finding, or … making predictions about the future” or assessing or characterising past offending: Viane 2021 at [14].

49    Mr Faingataa relied on two judgments in which the Court quashed a decision not to revoke a cancellation decision where the decision-maker failed to consider the respective applicants’ evidence and submissions concerning the decisions of the Parole Board that they each be released on parole (Coker v Minister for Immigration and Border Protection [2017] FCA 929; 160 ALD 588 and Nguyen v Minister for Home Affairs [2020] FCA 127; 170 ALD 38).

50    But each case turns on its own facts.

51    In Coker, which was a review of a decision of the Minister, the submissions in support of revocation included a number of arguments derived from the decision of the Parole Board. In particular, Mr Coker submitted that the Parole Board decision “demonstrate[d] that he ha[d] been determined to not pose a threat to the Australian community” (original emphasis). In holding that the Minister had failed to consider the submissions and information provided by Mr Coker’s lawyers concerning the Parole Board decision, Moshinsky J noted that the Minister’s statement of reasons did not mention either the submissions or information concerning the decision (at [52]). In view of the potential relevance that material had to the issue of the applicant’s risk to the Australian community, his Honour said “one would expect it to have been referred to”, if it had been taken into account. He pointed out that the reasons referred to the remarks of the sentencing judge but not to the more recent decision of the Parole Board and considered that that “tends to reinforce the inference that it was not considered”.

52    Similarly, in Nguyen there was no reference in the Tribunal’s reasons to the fact that the applicant was granted parole (at [78]). In Ngugen, as in Coker, Banks-Smith J observed that, if the Tribunal had taken the parole decision into account, it is surprising that its reasons did not mention it (at [86]) and concluded, based on the totality of the evidence, that the Tribunal overlooked the decision (at [87]). Her Honour considered the omission to be material for a number of reasons, including that the parole decision contained a risk assessment, namely that the applicant’s release would not present an unacceptable risk to the community (at [98]). She felt that it was “realistically possible” that the parole decision, considered alone or in conjunction with other evidence, might have persuaded the Tribunal to assess the risk of reoffending as “low”, rather than “low to moderate”, and might have “tilted the balance in favour of revocation” (at [100]).

53    In contrast to both these cases, the Tribunal in the present case expressly referred in its reasons to the fact that Mr Faingataa had been approved for parole and to his parole conditions. In view of the Tribunal’s own concerns about the matter, the submission made by counsel as to the deterrent or protective effect of the parole conditions on the risk assessment and the Tribunal’s acceptance of that submission, I am not persuaded that the Tribunal overlooked the parole argument. Rather, I conclude that the Tribunal did not consider that the fact that Mr Faingataa had been approved for parole (or the conditions of his parole) was material to its decision and was not evidence or material on which its findings were based. That course was open to it: SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [32] (Rares, Flick and Griffiths JJ). The Tribunal concluded that the risk of reoffending (by conspiring to import drugs) was low but the gravity of Mr Faingataa’s offending was such that the Tribunal considered any risk that Mr Faingataa might engage in “further criminal or other serious conduct” was unacceptable.

54    Ground 1 must be rejected.

Was the manner in which the Tribunal assessed the risk of reoffending legally unreasonable (ground 2)?

55    Mr Faingataa submitted that it was legally unreasonable to rely on the two reports for several reasons.

56    First, Mr Faingataa contended that the Tribunal appears to have deferred to that evidence without carrying out its own analysis in the light of all the evidence and did not explain why it favoured that evidence over that which he advanced which demonstrated that he did not pose any risk of reoffending.

57    Second, Mr Faingataa contended that, since the pre-release report was based on testing completed in 2012 and the evidence he adduced, which was largely accepted by the Tribunal, was that his character had changed since his incarceration, there was “no rational or logical basis on which that risk assessment could have supported a finding of low risk at the time of the [d]ecision”.

58    Third, Mr Faingataa contended that Ms Alam’s assessment of his current level of risk and global clinical presentation (based on community norms) suggested that he was “not particularly at risk for misconduct”. He noted that her observation that he was at “low risk of recidivism” was reached following the application of the VRAG-R assessment guide which is an “actuarial assessment instrument”. He pointed out that “[a]t no stage” was she pressed on what she actually meant by “low” risk. He claimed that the term could mean “anything is possible” or a risk which is more than remote. Finally, he argued that, even her 3.7% figure considered in isolation from all the other evidence was a remote risk of future offending.

59    Finally, Mr Faingataa noted the absence of any reference in either the pre-release report or Ms Alam Report to the grant of parole or the parole conditions and repeated his submission that the Tribunal failed to consider those matters although they were “centrally relevant to the Tribunal’s assessment”.

60    I cannot accept these arguments.

61    In substance, if not in form, the proposition that the Tribunal’s assessment of risk was legally unreasonable is based on the weight the Tribunal is said to have given to the two reports. But a decision will only be legally unreasonable if it is beyond the lawful exercise of the statutory power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]–[13] (Allsop CJ); [62] (Griffiths J); [92] (Wigney J). Where, as here, the review concerns an exercise of power or the formation of a state of satisfaction, “the correct approach is to ask whether it was open to [the Tribunal] to engage in the process of reasoning in which it did engage” and a decision might be said to be unreasonable “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644; 96 ALJR 464 at [43] (Gordon J), citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133] and [135] (Crennan and Bell JJ). To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148] (Robertson J); DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30](5) (Kenny, Kerr and Perry JJ). In other words, the standard or test is “stringent”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [113] (Gageler J). If probative evidence can give rise to different processes of reasoning and if reasonable minds might draw different conclusions from the evidence, a reviewing court cannot find that the decision is illogical, irrational or unreasonable merely because another conclusion is available or preferable: SZMDS at [131]. As Gageler J observed in Li at [105], review by a court of the reasonableness of an administrative decision is mostly concerned with “the existence of justification, transparency and intelligibility” in the decision-making process and “whether the decision falls within a range of possible, acceptable outcomes”.

62    Here, it was well and truly open to the Tribunal to reason the way it did and there was a manifestly logical connection between the evidence and the conclusions drawn from it. The Tribunal was entitled to give weight to that evidence. No submission to the contrary was ever made. The fact that no-one questioned Ms Alam on what she meant by “low risk” is neither here nor there. It was plainly open to the Tribunal to find that there was a low risk of reoffending. It is not as though there was no evidence to support the finding and it was at least one of two alternative conclusions Mr Faingataa’s own counsel invited the Tribunal to reach. It is not legally unreasonable for an administrative decision-maker to accept one piece of evidence over another: C7A/2017 v Minister for Immigration and Border Protection (2020) 276 FCR 147 at [102] (Katzmann, Wigney and Abraham JJ).

63    Nothing in the Tribunal’s reasons indicates that the grant of parole or the parole conditions were centrally relevant to its assessment of risk. I do not accept that they were “front and centre” of Mr Faingataa’s argument, as Mr Jones submitted on the present application. Neither matter rated a mention in his personal circumstances form. Nor, as I indicated earlier, were they the subject of a contention in his SFIC. His own expert did not apparently consider them relevant, let alone significant, in her assessment of risk. And they were but one of the six “themes” upon which Dr Donnelly relied to support his submission that the risk of reoffending was “low or at best remote”.

64    The Tribunal’s assessment of risk was not legally unreasonable. The very fact that the conditions were imposed by the Parole Board supports the Tribunal’s conclusion that there was a material or, more than a remote, risk that Mr Faingataa might reoffend. The conditions show that the Board did not take the view that he was not a risk to the community: WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [54] (White, Moshinsky and Colvin JJ).

65    As Allsop CJ said in Stretton at [17]:

It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community’s behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterised as legally unreasonable – as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. … The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power.

66    The Tribunal was entitled to conclude, as it did, that “even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious”: CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [66] (Moshinsky, O’Bryan and Cheeseman JJ). I do not accept the argument that the Tribunal failed to carry out its own analysis of the risk in light of all the evidence.

67    Finally, the Tribunal explicitly acknowledged that the pre-release report referred to LSI-R testing completed in 2012 (at [79]). The Tribunal was entitled to take into account this report, and the assessment of risk it contained, when assessing the risk Mr Faingataa posed to the Australian community and to give it whatever weight it determined was appropriate. The fact that the Tribunal concluded that Mr Faingataa posed a “low”, rather than “medium–low”, risk (as the LSI-R assessment concluded) indicates that the Tribunal did not fail to appreciate the assessment’s lack of contemporaneity and took into account the more recent evidence.

68    It follows that ground 2 must also be rejected.

Conclusion

69    The appeal should be dismissed with costs.

Associate:

Dated:    22 May 2023