Federal Court of Australia

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 783

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J

introduction

1    The applicant was born in Iraq in 1983 and arrived in Australia in 2005 as the holder of a Class XB Refugee (Subclass 200) Visa. Between 2006 and 2020 he was convicted of a large number of criminal offences.

2    Much, but by no means all, of the applicant’s offending involved what can be described as driving offences. Several of these were not insignificant: for example dangerous and negligent driving and failing to stop when subject to a police pursuit. He was also convicted of offences involving theft, drug possession, assault, giving a false name, breach of a bail undertaking and using a carriage service to menace and harass, among other things. The material before the Administrative Appeals Tribunal (the Tribunal) in making the decision under review points to 16 separate occasions on which the applicant was sentenced between March 2006 and December 2020 (not including appeals or the imposition of a ‘final sentence’ under the Drug Court Act 1998 (NSW)). The vast majority of this offending was linked to the applicant’s use of illegal drugs.

3    In May 2011 the applicant was notified that consideration was being given to cancelling his visa under s 501 of the Migration Act 1958 (Cth) (the Act) as a result of the offences he had committed up to that time. In July 2011 a delegate of the Minister administering the Act decided not to cancel the visa, and the applicant was warned that his visa might be cancelled if he continued to offend.

4    In January 2021 the applicant’s visa was cancelled under s 501(3A) of the Act (the cancellation decision). That subsection requires the Minister to cancel a visa if the holder is serving a sentence of full time imprisonment, and the Minister is satisfied that they do not pass the “character test” in s 501(6) by reason of certain specified paragraphs of that subsection.

5    When a visa is cancelled under s 501(3A), the Minister is required by s 501CA(3) to give the visa holder a copy of the cancellation decision (and particulars of information relevant to it) and invite them to make representations about revocation of the cancellation. This was done in the present case. The applicant sought to have the cancellation decision revoked under s 501CA(4) of the Act, which provides as follows:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

6    On 31 August 2022 a delegate of the respondent Minister decided not to revoke the cancellation decision (the non-revocation decision). On 5 September 2022 the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal handed down its decision, affirming the non-revocation decision, on 22 November 2022.

7    The applicant now seeks orders setting aside the Tribunal’s decision.

8    In the light of the applicant’s criminal history, there was no real doubt that he did not pass the character test. The Tribunal’s attention therefore focused on whether there was “another reason why the original decision should be revoked”.

9    The Tribunal addressed that issue by reference to the considerations set out in Direction No 90: Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction 90), which was issued by the Minister, took effect on 15 April 2021 and (pursuant to s 499 of the Act) is binding on decision-makers under the Act other than the Minister acting personally. The Tribunal summarised its conclusions as follows (at [125]–[127] of its reasons):

Overall, the Tribunal acknowledges that there are factors in favour of the revocation, most significantly the best interests of the children in Australia, links to the Australian community and the impediment of removal. However, in the particular circumstances of this case, the Tribunal has decided to give greater weight to the primary considerations of protection of the Australian community and the expectations of the Australian community.

The Tribunal has formed the view that the Applicant has engaged in serious and repeated conduct and that there remains a risk of reoffending. The Tribunal has formed the view that such a risk is unacceptable, given the serious harm that could be caused to members of the community by the type of conduct the Applicant had previously engaged in.

The Tribunal has decided that, in all the circumstances of this case, these two primary considerations should be given greatest weight. The Tribunal has decided that the decision under review should be affirmed.

10    The grounds of review advanced by the applicant relate to findings that the Tribunal made in the course of coming to its conclusion concerning the risk of the applicant re-offending.

Grounds 1, 2, 4 and 7 – unreasonableness; illogical or irrational reasoning

11    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33]–[35] (Djokovic) the Full Court (Allsop CJ, Besanko and O’Callaghan JJ) explained the kinds of circumstances in which a decision or a state of satisfaction will be held to be “legally unreasonable because of illogicality or irrationality”. In that case, as here, the complaints of illogicality or irrationality were directed to “identifiable errors”, including a lack of evidence on which to found central conclusions and “illogical or irrational reasoning” (at [31]). The specific complaints were rejected, but the general statements by the Court are carefully considered and, in my view, are to be given great weight.

12    Referring to a number of earlier cases, the Court observed at [33] that “the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made”. At [35], the Court framed the ultimate question as:

… whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(Citations omitted, emphasis added.)

13    The phrase “irrational, illogical [or] not based on findings or inferences supported by logical grounds” can be traced back to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38], which the Court cited. The framing of ultimate the issue in terms of whether the state of satisfaction could have been reached logically or rationally echoes reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]–[131], [135] (SZMDS), which this Court in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 regarded as constituting the majority reasoning in that case.

14    These statements set a high bar for an applicant in judicial review proceedings who seeks to rely on illogical or irrational reasoning on the part of the decision-maker. They indicate that, for a decision or a state of satisfaction to be characterised as unjust, arbitrary or capricious (and thus liable to be set aside), it is necessary for the decision or state of satisfaction to be one that a decision-maker acting rationally could not have reached on the material that was before the decision-maker.

15    Possibly, a different approach is evident in a statement by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55], which was approved by a Full Court in Muggeridge v Minister for Immigration and Broder Protection [2017] FCAFC 200; 255 FCR 81 at [35] (Charlesworth J; Flick and Perry JJ agreeing), to the effect that illogical reasoning will not go to jurisdiction “if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result”. That statement may envisage that illogical reasoning in reaching a specific finding of fact may be an error going to jurisdiction, even if the ultimate decision is one that was reasonably open on the material, but only if that reasoning or finding was “critical”. A test in those terms echoes the reasoning of Gummow ACJ and Kiefel J in SZMDS at [53] and appears to gain some support from the reasoning of Gordon J in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43].

16    As will appear below, I have not found it necessary to reach a conclusion as to which of these approaches is correct. Both have the effect that not every logical misstep by an administrative decision-maker amounts to jurisdictional error. The error must, at least, be one that infects a “critical” factual finding.

Ground 1

17    Ground 1 fastens on what is said to be a “logical disconnect” between statements in the Tribunal’s reasons concerning two reports by a psychologist, Mr Albassit, that the applicant relied on.

(a)    At [45] the Tribunal noted a submission by the applicant, by reference to Mr Albassit’s reports, that he had exhibited symptoms of Post-Traumatic Stress Disorder (PTSD) but had never been treated.

(b)    The Tribunal addressed Mr Albassit’s first report in more detail at [54]–[65] and expressed reservations about relying on some of the conclusions in that report, in part because Mr Albassit had had to rely on a single telephone assessment of the applicant in February 2021 (lasting around one and a half hours), and in part because the report relied to a large degree on self-reporting by the applicant (whom the Tribunal considered to be an unreliable historian). However, the reports were not entirely rejected. At [60] the Tribunal noted a statement by Mr Albassit that the applicant had not received any significant psychological or psychiatric treatment for his mental health conditions and went on to conclude that:

… while it is stated that the Applicant’s conditions remain untreated, and given the claimed correlation between his condition and the offending behaviour, the conclusion must be drawn that the Applicant’s offending behaviour is likely to continue if he is released into the community, at least initially and until treatment is received.

(c)    Mr Albassit’s second report (which relied on a further telephone interview) was addressed by the Tribunal at [73].

(d)    At [74] the Tribunal, referring to both reports, said:

The Tribunal also acknowledges Mr Albassit’s statement in the 2021 report that the Applicant has been drug-free since September 2020. In his 2022 report Mr Albassit also expressed the view that the Applicant has good prospects of rehabilitation, should he be given the opportunity, noting that he has not reoffended since the earlier assessment and that he has been able to learn adequate coping strategies and remained substance-free despite not receiving any psychological or psychiatric treatment in detention and not following the treatment plan. The Tribunal gives Mr Albassit’s observations some, but limited weight, given the short period of time he has spent with the Applicant and the fact that he was consulted, it seems, for the purpose of preparing reports to Immigration.

(Emphasis added.)

(e)    Later, the Tribunal said (at [79]):

Mr Albassit’s report suggests that the Applicant’s offending is linked to his PTSD and a drug dependence disorder. The Tribunal is prepared to accept his professional opinion. The Tribunal is not satisfied that these conditions have been adequately treated. The evidence before the Tribunal is that the Applicant received minimal, and inadequate, treatment for his mental health issues since the diagnosis in 2021 and while he is on a drug substitution program, the Tribunal is mindful that the Applicant had abstained from drugs in the past and had reoffended. The Applicant’s resolve and ability not to use drugs has not been tested in the community when drugs, bad influences and other life stressors may be more readily available.

(Emphasis added.)

(f)    This passage came immediately before the Tribunal’s conclusion (at [80]) that “there remains a risk that the Applicant may resume the drug-intake and that he may re-engage in offending conduct”.

18    The italicised passages in [74] and [79] are said to involve a “logical disconnect”. It is said to be illogical for the Tribunal to afford “limited weight” to Mr Albassit’s opinion, while simultaneously accepting his “professional opinion”.

19    The proposition that the applicant’s offending was linked with mental illness was expressly put by him, relying on Mr Albassit’s reports, in the Statement of Facts, Issues and Contentions that he filed in the Tribunal. He cannot now complain if the Tribunal accepted that proposition. At [79] the Tribunal was “prepared to accept” Mr Albassit’s “professional opinion” principally for the purpose of noting where that conclusion led: ie the conditions were untreated and there was therefore doubt as to whether the applicant would be able to avoid resumption of his substance abuse. The acceptance of Mr Albassit’s opinion — urged upon the Tribunal by the applicant — may therefore have been arguendo rather than wholehearted.

20    In any event, the “professional opinion” that the Tribunal was “prepared to accept” was a matter of diagnosis based on tests that Mr Albassit administered, uncontroversial background facts (eg the applicant experienced trauma when young, had a history of substance abuse and offending), and relevant literature. On the other hand the “observations” as to which reservations were expressed at [74] were, first, an assertion that the applicant had been drug free for a period, and second, an assessment of prospects based on recent history. Mr Albassit’s only source for these matters was the applicant’s self-reporting. There was nothing irrational about treating these different aspects of the reports differently.

21    It was submitted in the alternative that it was not open to the Tribunal to give limited weight to Mr Albassit’s observations on the basis that he had spent only “a short period of time” with the applicant. The argument appears to be that the Tribunal has no expertise that allows it to judge how much time is needed for a psychologist to make an assessment. That, with respect, misses the point. The Tribunal, as noted above, did not question Mr Albassit’s ability to make a proper diagnosis. It queried the foundations for two observations that he made, both apparently based on the history that he took from the applicant.

22    The final sentence of [74] of the Tribunal’s reasons is somewhat unclear. Each of the two considerations mentioned in that sentence (the “short period of time” spent with the applicant and the purpose for which Mr Albassit had been engaged) is capable of being read as referring to two distinct concerns that emerge from the Tribunal’s reasoning. One is that the applicant’s evidence was not regarded as persuasive and was described by the Tribunal as “self-serving”. That could clearly be seen as detracting from the weight to be afforded to any observations of an expert witness that depended on the applicant’s reporting, especially one whom the applicant had engaged solely in order to provide a report for the purpose of reinstating his visa. The other concern was that the applicant had not received treatment for his mental health conditions and, in particular, had not engaged with Mr Albassit in order to obtain treatment. The latter issue was relevant to both the applicant’s prospects of rehabilitation and Mr Albassit’s ability to comment on those prospects.

23    This lack of clarity is regrettable, but does not constitute an error capable of going to jurisdiction. What weight to give to the evidence of Mr Albassit was quintessentially a matter for the Tribunal. The sentence in question is open to different interpretations but each interpretation reveals a rational process of reasoning; and it is clear, at least, that the Tribunal decided to give the identified aspects of Mr Albassit’s report limited weight. The Court “should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Ground 2

24    Ground 2 alleges that the Tribunal reasoned irrationally in coming to its conclusion that the risk that the appellant would re-offend was “not insignificant”. The paragraph in which this conclusion is set out is at [80], where the Tribunal said:

If the Applicant was to be released into the community, the Tribunal considers there remains a risk that the Applicant may resume the drug-intake and that he may re-engage in offending conduct because he would be subjected to the same stressors as before and because he may not have the skills to deal with those. That is, the Tribunal is of the view that the risk of reoffending, should the Applicant be released into the community, remains and that risk is not insignificant.

25    The argument advanced in the applicant’s submissions is that certain other paragraphs in which the Tribunal made findings as to the applicant’s risk of recidivism do not disclose a rational basis for a conclusion that the applicant posed a risk to the Australian community in more than an immaterial way or to a greater extent than an ordinary person in the community. This submission is rejected.

26    The submissions refer to [60] where, referring to part of the report of Mr Albassit in which it was noted that the applicant had not received significant psychiatric and psychological treatment, the Tribunal said:

That is, while it is stated that the Applicant’s conditions remain untreated, and given the claimed correlation between his condition and the offending behaviour, the conclusion must be drawn that the Applicant’s offending behaviour is likely to continue if he is released into the community, at least initially and until treatment is received.

(Emphasis added.)

27    The Tribunal thus concluded that, if a central plank of the applicant’s case was accepted (as the Tribunal was prepared to do at [79], discussed above), a continuation of offending behaviour was “likely” at least in the short term. The applicant’s past offending, as noted earlier, was not trivial and had endangered members of the public.

28    Reference is also made in the submissions to [128], although it is not clear why. This is the paragraph in which the Tribunal stated its final decision on the review. That it did not contain an explanation for intermediate findings is hardly surprising.

29    Prior to stating its conclusion at [80], the Tribunal also:

(a)    found that the applicant had not sought help for his mental health issues and did not have a genuine interest in doing so (at [61], [65], [72]);

(b)    did not accept that the cancellation decision and being placed in detention had “brought it home to him that he could be returned to Iraq and lose everything” or been a “wake up call” for the applicant (at [63], [66]);

(c)    rejected a submission that the applicant now had “strong family support and the support network in the community to help him stay away from offending”, because such support had not prevented him from offending in the past (at [69]);

(d)    noted that the applicant was no longer with his previous partner (whose influence had led him into drug use) and was with a new partner who did not take drugs; but observed that he had continued to use drugs for a long time after his relationship with the former partner ended (at [69]); and

(e)    placed weight on the fact that the warning issued to the applicant in 2011 had not deterred him from further offending (at [73]).

30    The Tribunal thus set out an ample basis for a finding in the terms that it used at [80]. In the context of that reasoning, the Tribunal should be understood to have found that the applicant’s risk of re-offending was more than immaterial and more than the baseline risk of an ordinary member of the community. Put shortly, the applicant had a long history of fairly serious offending; and there was (in the Tribunal’s view) reason to be very doubtful as to whether the factors that had led to that offending had been, or would be, dealt with.

Ground 4

31    At [50] the Tribunal said:

The Applicant told the Tribunal that he was young at the time and did not know what he was doing but he is more mature now and has a better understanding and he is now more positive. He also states that he was subject to bad influences (including from his former partners) which are not there now. As noted above, the Tribunal finds that evidence unpersuasive. The Tribunal does not accept that the relatively short period of time that has since [sic] the more recent offending changed the Applicant’s perception of his behaviour. As for bad influences, the Applicant has not presented persuasive evidence that he will avoid negative influences in the future.

(Emphasis added.)

32    The last sentence of this paragraph is said to involve the Tribunal imposing an impossible standard of proof on the applicant and ignoring evidence that the applicant had put forward.

33    The sentence needs to be read in context. Between [45] and [53] of its reasons the Tribunal dealt with submissions and evidence put forward by the applicant to the effect that he had seen the error of his ways, was a changed person and therefore would not return to substance abuse and offending if released into the community. The observations at [50] were part of the Tribunal’s response to that evidence and do not suggest any particular burden of proof that the applicant needed to meet. More specifically, those observations were a response to a submission that the applicant had been, but was no longer, subject to “bad influences”. The Tribunal did not find the applicant’s evidence “persuasive” as to whether he would be able to continue to resist such influences. This was neither a positive finding that the applicant would one day fall under negative influences, nor the erection of a requirement that he prove a future state of affairs.

Ground 7

34    After the section of the Tribunal’s reasons mentioned above in relation to ground 4, the Tribunal turned to Mr Albassit’s reports (aspects of which have been noted above in the discussion of ground 1). In introducing that topic, at [54], the Tribunal said:

The Tribunal has some concerns with the veracity and the probative value of any evidence supplied by the Applicant for the purpose of the visa process because the Tribunal considers such evidence to be self-serving.

35    This observation is said to involve applying “an indiscriminate limit on the probative value of the applicant’s evidence because it was prepared in the course of seeking revocation of the cancellation decision”. In oral submissions it was put that the Tribunal is to be understood as applying a “blanket” approach of scepticism towards all of the material tendered by the applicant and not only his own evidence.

36    First, it is clear from the context that the sentence quoted above refers to the evidence of the applicant himself and not — at least directly — to the reports and supporting statements that he tendered. The sentence appears as part of the discussion of Mr Albassit’s reports, in a paragraph noting the basis upon which (and context in which) those reports had been prepared. The point being made was the unsurprising one that the probative value of the reports depended to some extent on the veracity of the history provided to Mr Albassit by the applicant.

37    The Tribunal made a similar point at [48] in relation to statements by members of the applicant’s family. It did not doubt the genuineness of the views expressed but noted that the family members did not appear to be “fully cognisant of the Applicant’s past offending” and found their observations unpersuasive.

38    Secondly, the observation at [54] comes after the conclusion at [53] that the applicant’s assurances that he was reformed and would not reoffend were “unpersuasive” and “opportunistic”. The Tribunal had seen the applicant give oral evidence and had the opportunity to assess his statements alongside the documentary records of his past behaviour. It had evidently come to the conclusion that the applicant’s credibility was questionable, at least in contexts where the prospect of having his visa cancellation revoked gave him an incentive to portray himself as a reformed character. There was nothing irrational in this reasoning process.

grounds 3 and 8 – findings not supported by evidence

39    These grounds point to findings made by the Tribunal which, it was submitted, had no evidence to support them.

40    The Minister made a general submission in response that a “no evidence” complaint cannot be brought in respect of a fact that is not a jurisdictional fact. This was based on Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [46] (Plaintiff S156), where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ rejected a complaint that there was no evidence for certain findings of fact on the basis that:

[There] was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts.

41    The reference to “jurisdictional facts” in this statement cannot, with respect, be understood to use that expression in its normal sense. Ordinarily, a jurisdictional fact is a fact upon whose existence the decision-maker’s power or duty depends. Whether or not a fact of that kind exists is a question for the court, on the evidence before it, and not something as to which the decision-maker’s view has any particular status. Their Honours’ statement must be taken to mean that the absence of evidence for a particular fact can be a proper ground of complaint when (but only when) the decision-maker’s power depends on their satisfaction as to the existence of that fact. (In such a case the “jurisdictional fact” is the decision-maker having the relevant state of mind.) It appears from one of the authorities cited by their Honours — SZMDS at [31] (Gummow ACJ and Kiefel J) — that this understanding of “no evidence” as a ground of review is affected to some degree by authorities considering ss 5(1)(h) and (3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). However, neither SZMDS nor Plaintiff S156 was an ADJR Act case.

42    In SZMDS at [31], referring to an early decision of Wilcox J in this Court, Gummow ACJ and Kiefel J distinguished the “no evidence” ground from a “more debatable question” concerning “defective fact finding as an independent ground of judicial review”, which, they considered, did not arise in that case. Nevertheless, their Honours ultimately held at [53] that the decision under review in that case was to be set aside on the basis of “a critical finding by inference not supported on logical grounds”. This, as noted at [14] above, appears to involve a different test from that adopted by Crennan and Bell JJ and reflected in the formulation of the Full Court in Djokovic.

43    On either view, a finding of fact for which there is no evidence would appear to lead to jurisdictional error if satisfaction about that fact is a prerequisite for the existence of the relevant power. If the particular fact does not have that statutory status, but is part of the factual matrix upon which the decision-maker has based their state of satisfaction as to a broader ultimate issue (eg whether there is “another reason” to revoke the cancellation of a visa), it is difficult to see why a finding for which there is no evidence should be analysed in any fundamentally different way from one that has been reached by an illogical inference. (It is true that a finding for which there is no evidence at all involves an error of law (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–356 (Mason CJ)); however, the distinction between errors of fact and law has not been treated as determinative in this sphere since Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 77 ALJR 1165 at [53]–[60] (McHugh and Gummow JJ).) Thus, the question raised by the arguably divergent authorities discussed at [11]–[15] above will at some stage need to be resolved in relation to a finding by an administrative decision-maker on a “critical” fact that is not supported by evidence. It does not need to be resolved in the present case, for reasons which follow.

Ground 3

44    In its reasons at [75] the Tribunal said:

The Applicant told the Tribunal that has [sic] been receiving injections for his drug dependence and has not used drugs for two years. He claims that drugs are available in jails and in Villawood. While that may be the case, the Tribunal does not consider that drugs are as readily available in detention as they are in the community. Thus, the Applicant’s abstinence from drugs during his incarceration cannot, in the Tribunal’s view, evidence his ability to abstain from drug use when living in the community.

(Emphasis added.)

45    Ground 3 focuses on the italicised sentence. It is argued that there was no evidence before the Tribunal that drugs are any less available in detention than in the community generally.

46    The applicant sought to rely on an affidavit annexing media reports which purport to show that some drugs are in fact readily available in immigration detention. That material was not before the Tribunal; and, in any event, evidence to the contrary of an asserted fact does not prove that there was no evidence for that fact. Counsel for the applicant accepted that this evidence could only show the nature of the material the Tribunal might have found if it had investigated the issue. However, it is not contended that the Tribunal erred by failing to make an inquiry. I therefore regard this evidence as irrelevant.

47    The Tribunal was dealing with a claim by the applicant that he had not used drugs for two years in an environment in which they were available. It was necessary for the Tribunal to consider (as it did in the last sentence of the paragraph) whether that was a useful predictor of the applicant’s ability to abstain from drug use if released into the community. To accept that it was a useful predictor, the Tribunal needed to be satisfied that the applicant’s abstinence was not explained by the conditions in detention. This was the context in which the Tribunal said that it “does not consider” that drugs were as available in detention as in the community. For this reason, the Tribunal’s statement is properly understood as expressing a lack of satisfaction that the applicant had made out a necessary step in his argument, rather than a positive finding about the availability of drugs in detention. The Tribunal did not need to point to specific evidence to justify that lack of satisfaction.

48    For this reason, ground 3 must be rejected.

49    If (contrary to my view) the observation to which ground 3 relates constituted a positive finding, it was a cautious one: it was not that drugs are unavailable or rarely available in detention, but that they are not “as readily available” in that setting “as they are in the community”.

50    In considering whether the Tribunal had a proper basis for a finding in those terms it is important to bear in mind that, in administrative decision making, the nature of the material that can be relied upon in reaching a decision is not as strict as in a proceeding before a court; and, indeed, inferences may sometimes be drawn from an absence of evidence. Relevantly in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [33]–[34] Basten JA (with whom McColl and Whealy JJA agreed) said:

The respondent relied upon the discussion of the “no evidence” ground, under the general law, in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond. Mason CJ noted that there was “no error of law simply in making a wrong finding of fact” - referring to Waterford v The Commonwealth; noting that “want of logic is not synonymous with error of law”, he continued:

“So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

Four points of caution should be made. First, this passage indicates that the “no evidence” ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term “no evidence”, as an administrative decision-maker is usually entitled to take into account material which would not count as “evidence” in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a “no evidence” ground of review.

(Citations omitted, emphasis in original.)

51    In the present case the Tribunal heard the applicant’s review application in its General Division, subject to the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) rather than under Part 5 or Part 7 of the Migration Act. It thus proceeded according to an adversarial procedure, with the Minister as a party and both parties represented (under ss 30 and 32 of the AAT Act), so that the label “inquisitorial” would for some purposes not be apt. However, it was not bound by the rules of evidence and was entitled to inform itself in whatever manner it thought appropriate (s 33(1)(c) of the AAT Act).

52    In that setting, it was not erroneous for the Tribunal to proceed on the understanding that the applicant was living in an environment where his movements and the people he could associate with were heavily regulated. It is also uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally. Of course these considerations do not exclude the possibility of drugs, potentially in significant quantities, being brought into detention centres and becoming available to detainees. However, absent evidence of the extent to which that occurs, it was reasonable to infer that sources of supply are more limited, and the prospects of detection greater, than for people at liberty in the community. To the extent that the Tribunal made a finding that drugs were less “readily available” in detention than in the community, that finding had a rational basis.

53    The Minister also referred to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13 at [18] (Viane), where it was said that “[in] the circumstances of the present case, where no evidence or other material has been identified in support of the Minister’s findings … it can be assumed that the findings proceeded from the Minister’s personal or specialised knowledge or were matters commonly known”. Viane concerned a decision under s 501CA(4) made by the Minister personally, where there were “no limitations on the sources of information that may be considered”, and no requirement that the Minister disclose whether a material finding was made from personal knowledge.

54    I have expressed the view above that it was open to the Tribunal to rely on the obvious, widely known and uncontradicted understanding that the applicant’s liberty was constrained in detention and his capacity to obtain a commodity (especially one whose sale and use are prohibited) was probably therefore also constrained. However, I do not think it would be appropriate in the circumstances of the present case to assume that the relevant finding (if one was made) proceeded from “personal or specialised knowledge” of circumstances in detention. Unlike the Minister in Viane, the Tribunal was proceeding in an adversarial framework that called for a form of procedural fairness not far removed from that expected in a court. Although it was open to the Tribunal (in the light of s 33(1)(c) of the AAT Act) to take into account the presiding member’s own knowledge of facts relevant to the issues before it, the Tribunal would have invited complaint (at least) if it had relied on its private understanding of things that were not common knowledge without having disclosed that understanding to the parties and invited their response. The absence of any evidence of such disclosure makes it unlikely that the Tribunal was relying on any specialised body of knowledge.

Ground 8

55    Ground 8 takes issue with the Tribunal’s reasoning at [47], as follows:

As for the Applicant being now being [sic] older, the Tribunal notes that the most recent offending occurred less than three years ago and the Tribunal does not consider that such a short period of time would be significant in rendering the Applicant more mature.

56    It is argued that the Tribunal did not identify how it came to the view that three years was “a short period of time” or that it was insufficient to make the applicant “more mature”.

57    According to the material before the Tribunal, the applicant’s last offending occurred in September 2020 and involved giving police a false name or address and driving while disqualified. He was 36 years old at that time. The Tribunal’s decision was made in November 2022, “less than three years” (in fact not much more than two years) later, when the applicant was 38 years old.

58    The Tribunal responded to the suggestion that the applicant was older and more mature at the level at which it was put. It was not taken to any scientific evidence concerning the applicant’s capacity to gain maturity within a particular period of time. It therefore responded by reference to common human experience. It did not need to cite evidence in order not to be persuaded that the applicant, in his mid to late 30s, had acquired a significant level of additional maturity as a result of the passage of less than three years.

irrelevant consideration – ground 5

59    Ground 5 attacks the Tribunal’s statement in the last sentence of [79] (which has been quoted in full above) that:

The Applicant’s resolve and ability not to use drugs has not been tested in the community when drugs, bad influences and other life stressors may be more readily available.

60    This statement comes immediately before the Tribunal’s conclusion at [80] that the risk of the applicant re-offending was “not insignificant”. It is said to involve taking into account an irrelevant consideration.

61    As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74]:

What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

62    The complaint in ground 5 therefore does not point to any regard being had to an “irrelevant consideration”, in the sense in which that expression has been used in Australian administrative law since Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–45 (Mason J). The complaint is, again, about the Tribunal’s fact-finding. It is said that the fact that the applicant has not been “tested” in the community “cannot rationally impact” the likelihood of reoffending.

63    That complaint would have force if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending. However, it was not. The statement in question came at the end of a discussion of the applicant’s history (which involved a long period of substance abuse and frequent offending), his mental health issues and the extent to which they had been treated, and his commitment to rehabilitation. All of these were relevant to the conclusion, which Direction 90 required the Tribunal to reach, concerning the level of risk that the applicant would re-offend. To the extent that the applicant had managed to abstain from drug use and receive some treatment, that logically pointed to a lower risk; but the weight to be given to that evidence could properly be seen to be affected by the fact that these things had been achieved in a relatively controlled environment. There was nothing impermissible in this aspect of the Tribunal’s reasoning.

ground 6 – absence of intellectual process

64    The Tribunal is said to have failed to engage intellectually with a “claim” by the applicant that his current partner was a protective factor in his risk of reoffending.

65    Reference was made to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [39] (Griffiths, White and Bromwich JJ) (Carrascalao) and to DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [53] (Bromberg and Mortimer JJ) (DQM18). However, neither of these cases really assists. Carrascalao involved a situation where the Minister had made a decision, purportedly in response to a large volume of documentary material, within a period that did not plausibly allow any real absorption of the contents of the documents. The observation cited in DQM18 was as to the need for “a probative basis, and some intellectual engagement that is beyond stereotyping and speculation”. Here, the argument appears to be that the applicant put forward a specific contention and the Tribunal did not pay any regard to it.

66    The obligation that arises under s 501CA(4), by implication from the fact that the decision-making power is triggered by the making of “representations”, is to consider those representations. Kiefel CJ, Keane, Gordon and Steward JJ said of the obligation in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24] (Plaintiff M1):

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

(Citations omitted.)

67    The requisite “intellectual process” therefore does not demand an express finding in relation to every assertion made in the representations. An inference that there has been a failure to engage with the representations to the requisite degree is unlikely to be made unless there is a failure to engage with an argument that is substantial and clearly articulated (Plaintiff M1 at [25]).

68    The applicant had re-partnered between the decision of the delegate and the Tribunal hearing. His new partner provided a written statement in which she said that she had known the applicant for 12 years and been in a romantic relationship with him for “over two months”. She discussed the support that they provide to each other and how she would be affected if he was not able to return to the community. The statement does not go into her attitude to illegal drugs or whether or not she engaged in such activity herself.

69    The applicant’s submissions do not pinpoint the point at which a submission was made to the effect that the applicant’s new partner does not take drugs or that she was a protective factor in relation to his risk of reoffending. It appears that a suggestion along these lines may have arisen during the Tribunal hearing. No transcript or detailed record of the hearing is in evidence. Without knowing the terms in which the relevant representation was made, it is difficult to make a finding that the Tribunal failed to engage with it.

70    The Tribunal did say, at [69]:

The Applicant refers to his relationship with his current partner. He states that one of the factors leading to his past drug use was the influence of his partner who was also taking drugs and this is no longer an issue as his present partner does not take drugs. The Tribunal is mindful that the Applicant’s relationship with his former partner ended long ago, with the Applicant continuing to use drugs.

71    The argument as recorded by the Tribunal was that the applicant’s present partner “does not take drugs” and therefore he was no longer under the “influence” of a partner who took drugs. That falls somewhat short of a submission that the applicant’s new partner was a “protective factor”. The Tribunal responded to the argument that it understood to have been put, by observing in effect that the applicant’s drug-taking had not been limited to the period he spent with his former partner. Thus, if the Tribunal understood the argument correctly (and there is no evidence that it did not), it both recorded the argument and indicated — albeit briefly — why it did not find the argument persuasive. Brevity in written reasons is not in itself sufficient to demonstrate a lack of intellectual engagement.

72    Ground 6 must be rejected.

conclusion

73    None of the grounds of review has been made out. The application must therefore be dismissed with costs.

Associate:

Dated:    12 July 2023