Federal Court of Australia

VCFR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1606

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted an extension of time within which to bring the application for judicial review to 21 May 2022.

2.    The decision of the Administrative Appeals Tribunal is set aside and the matter remitted to the Tribunal, differently constituted, for re-determination according to law.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant is a 51 year old citizen of Somalia who arrived in Australia in 1993 on a Global Special Humanitarian (subclass 202) visa.

2    Since arriving in Australia, the applicant has a significant criminal history having committed approximately 90 criminal offences between 2002 and 2017. On 22 February 2019, the applicant was sentenced to a term of imprisonment for two years and 10 months for indecent assault.

3    On 22 March 2019, the applicant’s (subclass 202) visa was the subject of mandatory cancellation pursuant to s 501(3A) of the Migration Act 1958 (Cth) on grounds that the applicant did not pass the character test. On 15 April 2020, an application for revocation of the cancellation pursuant to s 501CA(4) of the Act was refused by a delegate of the Minister. On 19 June 2020, the Administrative Appeals Tribunal dismissed an application for review on the basis that the applicant had applied for review of the s 501(3A) decision instead of the s 501CA(4) non-revocation decision, and the time limit in which he could apply for review of the non-revocation decision had expired.

4    On 29 July 2020, the applicant applied for a Protection (Subclass 866) visa.

5    On 21 October 2021, the Minister’s delegate refused the application for the visa on the basis that the applicant did not meet the criterion in s 36(1C)(b) of the Act. 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.

6    An application for review of that decision to the Tribunal was unsuccessful, with the decision affirmed on 4 April 2022.

7    It is from that decision that the applicant now seeks review pursuant to s 476A of the Act on the two grounds set out in the amended originating application:

(a)    In exercising its review jurisdiction under s 500(1)(c)(i) of the Act and concluding that the applicant did not meet the criterion in s 36(1C) of the Act (the s 36(1C) conclusion), the second respondent committed jurisdictional error in that the conclusion was illogical, unreasonable or irrational (ground one); and

(b)    In exercising its review jurisdiction under s 500(1)(c)(i) of the Act and in making the s 36(1C) conclusion, the second respondent committed a jurisdictional error referring to and relying upon offences in the applicant’s criminal record, as well as or alternatively the unproven criminal allegations, which did not, and could not, meet the definition of “particularly serious crime” in s 5M of the Act (ground two).

8    The applicant also seeks an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) as the judicial review application was filed 11 days late.

9    Before this Court, it was conceded that the applicant had been convicted by a final judgment of a particularly serious crime.

10    The issues are:

(a)    Whether the applicant should be granted an extension of time within which to bring an application for judicial review; and

(b)    If so, whether, in concluding that the applicant is a danger to the Australian community, the Tribunal fell into jurisdictional error.

11    It is for the reasons which follow that:

(a)    The applicant is granted an extension of time within which to bring the application for judicial review; and

(b)    There will be an order setting aside the decision of the Tribunal and remitting the matter to the Tribunal, differently constituted for redetermination according to law.

Extension of time

12    An application for judicial review of a migration decision by the Tribunal must be filed within 35 days of that decision: s 477A(1) of the Act.

13    The Court may extend that time if an application in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order has been made and the Court is satisfied it is necessary in the interests of the administration of justice to make the order.

14    The application for an extension of time has annexed to it a short written statement from the applicant stating that he was unable to fill out the application form for a review of the Tribunal’s decision as he was in the Adelaide Immigration Detention Centre and was unable to get help and that his mother had recently passed away in Somalia.

15    The Minister opposes an extension of time on the basis the grounds of the proposed judicial review application lack merit.

Principles

16    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [12] the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) said:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice.10 So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

17    On the question of the merits of the underlying application, the Court continued: at [17]-[19]:

… Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed,25 that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

It follows that the Full Court in DHX17 was wrong to say that “the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”.29 As the merits of a proposed application are a permissible consideration, it is within the Federal Court’s jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application …

18    The application for an extension of time was filed 11 days out of time. The applicant submits there was good reason for the delay in filing the application given the matters set out by the applicant in the short statement accompanying the application.

19    There is no suggestion of any prejudice suffered by the Minister.

20    In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20], Perram, Farrell and Perry JJ said:

20.    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows.

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.)

21    I do not accept the Minister’s submission that the proposed grounds of judicial review lack merit. In the circumstances, I am satisfied that it is in the interests of the administration of justice to grant an extension of time within which the applicant can file the application for judicial review and an order will be made accordingly.

Legislative provisions

22    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…

23    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.

24    “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.

25    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). There was no suggestion that the applicant is a danger to Australia’s security: s 36(1C)(a). Further, it was not disputed that the applicant had been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act. The issue related to whether the Tribunal had committed jurisdictional error in arriving at its conclusion that the applicant is a danger to the Australian community such that he did not satisfy s 36(1C)(b).

The Tribunal’s Reasons

26    The Tribunal Member considered the criterion for a protection visa in s 36(1C)(b) of the Act and was satisfied that in 2010, the applicant had been convicted by a final judgment of a “particularly serious crime”, being “indecent assault-basic”, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) committed in February 2007. That offence carries a maximum penalty of eight years imprisonment. The Tribunal Member found that indecent assault involved “violence against a person”: Reasons [14]-[18].

27    On the question of the meaning of “Danger to the Australian Community” the Tribunal Member referred to Articles 33(1) and (2) of the United Nations Convention Relating to the Status of Refugees adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention) which provides:

33(1)    No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

33(2)    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

28    The Tribunal Member referred to WKCG v Minister for Immigration and Citizenship [2009] AATA 512 and the observations of Deputy President Tamberlin in that matter concerning Article 33(2) at [25]-[31]. The Tribunal Member referred to DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 at [83] (Logan J) where his Honour said:

In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that (sic than) just “risk”.

29    The Tribunal Member also referred to KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 at [54] where Bromberg J said:

Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).

30    The Tribunal Member described this passage as obiter. That is not the case, however nothing turns on that.

31    The Tribunal Member concluded that by reason of Bromberg J’s reference in KDSP to “danger” as being “suggestive of a high level of risk” and Logan J’s reference in DOB18 reference to “danger” as a present and serious risk, thereby equated “present and serious risk” as something “suggestive of a high level of risk”.

32    The Tribunal Member concluded: at Reasons [26], that “The ordinary meaning of ‘danger’ must contemplate both the probability of a thing occurring and the harm that will result from its occurrence” and did not consider either Logan J’s formulation nor Bromberg J’s formulation of what is encompassed in “danger” as intended to confine the meaning of “danger” to probability only. On that basis, the Tribunal Member considered both the risk of further harmful conduct and the seriousness of the harm involved.

33    From that point, the Tribunal Member considered the applicant’s background in criminal offending at Reasons [28]-[82].

34    The Tribunal Member noted that the applicant has an extensive criminal history in Australia and conducted a detailed and comprehensive review of the applicant’s most serious offending and alleged offending.

35    The Tribunal Member described the events leading to convictions for:

(a)    13 February 2007 - Indecent assault at Reasons [37]-[40]. This was the offence to which the Tribunal Member referred earlier in the Reasons as being the “particularly serious crime”;

(b)    2 September 2013 - Indecent behaviour at Reasons [42]-[43];

(c)    3 October 2014 - Grossly indecent act at Reasons [45]-[47];

(d)    30 November 2014 - Assault at Reasons [48]-[49];

(e)    26 February 2015 - Grossly indecent act at Reasons [50]-[51]; and

(f)    7 July 2017 - Indecent assault at Reasons [52]-[66].

Alleged offences

36    The Tribunal Member also considered allegations of rape, indecent assault and assault in detail, being four alleged offences for which the applicant had not been prosecuted.

37    The first of the alleged offences referred to by the Tribunal Member was an alleged rape on 13 February 2005: Reasons [32]-[33].

38    When considering the alleged rape, the Tribunal Member referred: Reasons [32]-[33] to “police records” and that in the hearing before the Tribunal Member the applicant said he did not behave like that and suggested that when he was intoxicated “people you hang around, they drag you into that”.

39    The second of the alleged offences referred to by the Tribunal Member was an alleged rape on 27 November 2006: Reasons [34]-[35].

40    When considering this alleged rape, the Tribunal Member referred: Reasons [34]-[35] once again to “police records” and that before the Tribunal, the applicant denied having raped the complainant.

41    The applicant was self-represented before the Tribunal. It is apparent from the handwritten statement that accompanied the application for an extension of time that the applicant does not have a high degree of literacy. The Tribunal Member proceeded to find in relation to both alleged rapes: Reasons [36]:

36.    Despite the fact that the rape allegations were never prosecuted, and the complainants were never cross examined, on the evidence before me I think it more likely than not that the allegations are true. I am satisfied that the Applicant committed rape in 2005 and 2006 respectively.

[emphasis added]

42    The third of the alleged offences referred to by the Tribunal Member was an alleged indecent assault on 8 (sic 28) May 2012. In a single paragraph: at Reasons [41], consistently with the approach taken by the Tribunal Member in relation to the two alleged offences of rape, the Tribunal Member concluded:

41.    The police records contain a complaint that on 8 May 2012 the Applicant indecently assaulted a 16 year old girl. She reported that she was on a bus wearing her school uniform when the Applicant sat next to her and said he wanted to make love to her. He asked her to introduce him to her two friends. She was scared and decided to get off the bus. As she walked past him, he slapped her on her bottom. It does not appear that this complaint resulted in a prosecution. In the hearing the Applicant said he could not remember it. This alleged behaviour is so similar to other indecent assaults that the Applicant has been convicted of that I accept that it did occur.

[footnotes omitted, emphasis added]

43    The fourth of the alleged offences referred to by the Tribunal Member was an alleged assault on 14 September 2015. Once again, in a single paragraph: at Reasons [44], and again consistently with the approach taken by the Tribunal Member in relation to the first two alleged offences of rape said:

44.    The police records contain an allegation that on 14 September 2015, the Applicant assaulted his ex-girlfriend by punching her from behind to the mouth, causing a split lip, a loose tooth and bleeding, and throwing her to the ground. There was a Police Interim Intervention Order in place at the time. In the hearing, the Applicant said he could not remember, then he suggested that he was defending himself from the complainant’s violence. This offence was not prosecuted, however considering the evidence, I am satisfied that the Applicant assaulted his ex-girlfriend in breach of a Police Interim Intervention Order.

[footnotes removes, emphasis added]

The applicant’s conviction on 26 February 2015 - grossly indecent act

44    The Tribunal Member noted in relation to this offence: at Reasons [51]

A senior psychologist prepared a report for the Sentencing Management Unit in February 2016. The report stated that on the basis of a Static Risk assessment, the applicant was estimated to be at high risk of sexual re-offending.

The applicant’s conviction on 7 July 2017 - indecent assault

45    The Tribunal Member referred: at Reasons [52], to the transcript of the sentencing proceedings of the Supreme Court of South Australia which set out the facts of the offence as follows:

Just after 5.00pm on 7 July 2017, the 14-year-old victim caught a bus on her way home from school. Once on the bus, the girl noticed the bus driver went to the back of the bus and woke a man up from sleeping. The man was [the Applicant] who said that he would be getting off at the next stop.

When the bus driver started driving the bus, [the Applicant], in the girl’s words, “started going off” because he did not know where he was. Five or ten minutes later, [the Applicant] came and sat across from the girl facing her. [The Applicant] started and kept on asking the girl; “where are we?”, “how old are you?”, and “where do you get off?”. The girl did not answer. [The Applicant] then placed his right hand on the girl’s right upper leg and moved it up and down. The girl said, “Can you please stop”, but [the Applicant] kept going. The girl then got off at her bus stop. As the girl was getting off, [the Applicant] said, “Don’t stay, I need someone”. The girl reported that [the Applicant] smelled of alcohol and urine, that he was hard to understand, and was drunk because he could hardly stand up. [The Applicant] was subsequently identified on CCTV footage and arrested on 21 July 2017. The bus driver also reported that [the Applicant] was grossly intoxicated.

46    At Reasons [53], the Tribunal Member referred to a pre-sentence report dated 30 November 2017 in relation to this offence and at Reasons [55]-[66] to the opinions of two psychiatrists who prepared reports as to whether the applicant was unable or unwilling to control his sexual instincts.

47    One of the psychiatrists, Dr Jennings, opined that the applicant was a very high risk of returning to abusing alcohol on a regular basis which resulted in a high risk of him re-offending as a result of him being incapable of controlling his sexual instincts when intoxicated.

48    The second psychiatrist, Dr Furst, concluded that it was most likely that the applicant’s release into the community would not be successful unless it was extremely highly structured and that it was most likely that the further re-offending would be of a similar nature to his previous offences but there was also the risk he could commit a more aggressive sexual offence if he did not address his offending behaviour before release.

49    Although the Tribunal Member referred to the sentence imposed for this offence of two years and 10 months with a non-parole period of 19 months: Reasons [66], and the making of an interim extended supervision order for the applicant on 18 May 2020, in circumstances where the applicant was due for release on parole, the Tribunal Member made no reference to the fact that the Magistrate before whom the applicant initially appeared on this offence referred the applicant to the Supreme Court of South Australia for sentencing and for consideration of whether an order for indefinite detention should be made pursuant to s 57 of the Sentencing Act 2017 (SA). Ultimately, Bampton J dismissed the s 57 application in sentencing remarks delivered 22 February 2019 in which her Honour said: at [54]

… In arriving at this decision, I have kept in mind that the protection of the community is of paramount importance in determining whether to order that [the applicant] be detained in custody until further order. When sober, [the applicant] is not incapable of controlling his sexual instincts. The question of whether he is willing to control his sexual instincts rests upon his willingness to abstain from alcohol abuse.

50    Having dealt with the applicant’s offending and alleged offending, the Tribunal Member then considered whether the applicant is a danger to the Australian community.

51    The Tribunal Member introduced consideration of this issue in the following terms: Reasons [68]-[71]:

68.    It is well accepted that, generally, the best predictor of future behaviour is past behaviour. Additionally, there is expert psychiatric evidence that it is most likely that any further offending would be of a similar nature to the Applicant’s previous offences or possibly more serious. Accordingly, the nature and seriousness of any future offending is informed by the Applicant’s past offending. The Applicant’s more serious past offending includes rapes, assaults and indecent assaults.

69.    The physical, emotional and psychological harm from rape is well known. The harm from committing another rape is extremely serious and potentially devastating for a victim.

70.    The harm from assaults of the kind the Applicant committed is serious as they are likely to cause physical and emotional injury.

71.    An indecent assault is typically disgusting and/or frightening to the victim. It involves an attack on the victim’s dignity and physical integrity. The Applicant chose victims who were teenagers, a demographic that is known to be impressionable, somewhat vulnerable and still in the process of developing robust personal boundaries. The 19 year old woman who was indecently assaulted on her way to TAFE was unable to take public transport to and from TAFE for a year because of what the Applicant did to her, indicating long term, debilitating psychological trauma. It could reasonably be expected that future victims would suffer adverse psychological impacts from such offending. Repeated indecent assaults are likely to result in very serious harm to members of the community.

[emphasis added]

52    A number of observations may be made about the Tribunal Member’s introduction to this issue.

53    Whereas the Tribunal Member’s assessment of the physical and emotional effects of the offences to which the Tribunal Member referred may not be gainsaid, nonetheless the Tribunal Member describes the applicant’s more serious past offending as including rapes. The applicant has not been prosecuted far less convicted of any charge of rape.

54    Second, although the Tribunal Member referred to the nature and seriousness of any future offending as being informed by the applicant’s past offending, the Tribunal Member took into account not only offences for which the applicant had been convicted, but also alleged offences for which the applicant had not been prosecuted but which the Tribunal Member was, nonetheless, satisfied had been committed by the applicant.

55    The Tribunal Member was not confident that the applicant would abstain from alcohol merely because an interim supervision order prohibits alcohol consumption, given his entrenched behaviour. The Tribunal Member also took note that the applicant had not done any alcohol rehabilitation or sexual offender rehabilitation counselling or programs. The Tribunal Member accepted the expert evidence that there is a very high risk that the applicant would re-offend unless he refrains from drinking alcohol.

56    The Tribunal Member found: Reasons [81]

81.    Taking the expert evidence and the Supreme Court’s assessment into account, I am satisfied that there is a high risk that the applicant will re-offend. There is no evidence that the applicant has raped anyone since 2006 which suggests that there is less of a risk that he would commit that particular offence now. However, I am not satisfied that there is no risk or only a negligible risk of that happening. Given the seriousness of that offending [being the rape] any material risk makes the applicant a danger to the Australian community. I am satisfied that the high risk applies to assaults and indecent assaults including on young persons. On account of that, the applicant is a danger to the Australian community.

[emphasis and square brackets added]

57    The Tribunal Member concluded that the applicant is a danger to the Australian community for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii) of the Act, and affirmed the decision under review.

PARTIES’ Submissions and consideration

Ground one

58    The applicant contends the Tribunal has made jurisdictional error in making findings relating to the alleged rapes, sexual assault and assault described at [36]-[43] above.

Rape allegations

59    In relation to the rape allegations, the applicant submits that the Tribunal relied upon 3 sources of information in making its findings, being:

(a)    The documents from the South Australia Police Force (SAPOL);

(b)    The applicant’s own answers at the hearing; and

(c)    The fact the applicant had been convicted of other offences arising from public homosexual sex in the Adelaide parklands and unwanted sexual touching.

60    As to the documents from SAPOL, the applicant submits that material was unsupported by any probative evidence of the kind that might be expected to ground a prima facie charge in a criminal curial setting such as sworn witness statements, video or audio recordings of interview of either the (unidentified) complainant or the applicant, contemporaneous medical records or reports or the like; rather, it was unsworn hearsay evidence. The applicant submits that the Tribunal engaged in tendency/propensity reasoning without “even bothering to assess whether there was any significant probative value as to the similarity between that conduct in the later offences with the conduct comprising the Rape Allegations.”

61    In relation to the second alleged rape on 27 November 2006, the identity of the complainant is redacted in SAPOL documents.

62    The applicant contends that the information before the Tribunal was inherently too weak for the Tribunal to logically, reasonably or rationally ground a positive conclusion that it was “more likely than not that the allegations are true”, and that the Tribunal Member “… was satisfied that the applicant committed rape in 2005 and 2006 respectively”.

63    On the applicant’s answers at the hearing, the applicant submits that there was nothing said in the answers which could have supported a conclusion that the applicant had committed the alleged acts. The applicant also submits that the Tribunal Member’s reference: at Reasons [36], that there was no suggestion of collusion between the two complainants who alleged they were raped does not, and cannot, logically, rationally or reasonably ground a positive conclusion that the applicant “more likely than not” engaged in the posited offences.

64    The applicant accepts that the Briginshaw principle: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, 360 (Dixon J), does not apply automatically to the decision-making process of the Tribunal such that the non-application by itself does not give rise to a jurisdictional error: Maliau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [91] (Colvin and Halley JJ), nonetheless the Tribunal is obliged, as part of the legally reasonable exercise of its jurisdiction, to consider the significance and gravity of the specific facts to be determined a part of the Tribunal’s statutory task.

65    On the offences for which the applicant had been convicted, the applicant submits the Tribunal engaged in tendency reasoning without considering that the offences do not offer any significant probative value as to the similarity between the conduct in those offences with the conduct comprising the Rape Allegations. The applicant submits that the Tribunal has adopted a course of illogical, irrational or unreasonable fact-finding that is grounded only in an assumption that as the applicant engaged in consensual homosexual activity outdoors in 2014, then it follows “more likely than not” that he raped another man eight years earlier.

66    The Minister submits that it was open for a logical and rational decision-maker to consider the victim’s evidence, as recorded in the police report, to be more compelling than the applicant’s evidence which was itself a bare denial. The Minister also submits that other matters referred to by the Tribunal, including the applicant’s other offences, his admissions relating to drinking issues, and problems controlling his sexual instincts, as well as that the applicant generally tended to deny his criminal offending, fortified the Tribunal’s choice to prefer the evidence of the police report to the applicant’s evidence.

67    The Minister submits that the Tribunal is entitled to act on hearsay information for any purpose and refers to BTJ16 v Minister for Immigration and Border Protection [2019] FCA 1636; 80 AAR 114 at [24]. The Minister submits that whether hearsay can support a serious finding will inevitably turn on the facts of the case: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 2 ALD 33 at 46 (Brennan J).

68    In relation to propensity evidence, the Minister submits that all that is relevant is whether a logical and rational decision-maker could consider the propensity/tendency evidence to be of some probative value in its assessment of whether or not a crime had been committed, where the Tribunal’s findings are not in a curial setting.

Indecent assault and assault allegations

69    The applicant made similar submissions as those made in relation to the rape allegations when addressing the indecent assault and assault allegations. Other than that, the applicant submits that the Tribunal relied upon only SAPOL documents and the applicant’s own evidence at the hearing for the Tribunal’s finding in relation to these allegations.

70    The Minister submits that it was again open for the Tribunal to place significant weight on the police report in relation to the assault and indecent assault allegations.

71    The applicant refers to the Tribunal’s statutory task under the Act viewed in the context of the inquisitorial operative framework in the Act and notes that although pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal is not bound by the rules of evidence and may inform itself on any matter, in such manner as it thinks appropriate, nonetheless the “more centrally relevant particular fact may be to the decision reached … [the] greater caution” it ought to apply in “evaluating the factual foundation for the decision to be reached”: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555, [120].

Consideration

72    In Sullivan at [119]-[121], Flick and Perry JJ said:

[119]    Although the Tribunal is not obliged to accept evidence which is not contradicted by means of cross-examination or otherwise, it has long been recognised that the rejection of such evidence may amount to a denial of procedural fairness: cf Hoskins v Repatriation Commission (1991) 32 FCR 443 at 449-450 per Pincus J. Equally a failure to provide adequate or any reasons for rejecting unchallenged evidence may constitute an error of law: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588 per Samuels JA. See also: SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 at [79] per Katzmann J; Ashby v Slipper (2014) 219 FCR 322 at [78] per Mansfield and Gilmour JJ. These are but two of the already accepted means whereby this Court can ensure that the Tribunal is not given an untrammelled power to make findings of fact free of all judicial scrutiny. Without being exhaustive, another constraint is the need for findings to be neither “irrational” nor “illogical”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ. A “failure rationally to consider probative evidence”, it has been said, “is not the same kind of error as a simple mistake of fact”: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [26] per Black CJ, Von Doussa and Carr JJ.

[120]    Within these already accepted principles, the Tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.

[121]    Cases may be found where the Tribunal has applied the decision in Briginshaw. But these cases are nothing more than the Tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of s 33(1)(c), it will be recalled, simply provided that the Tribunal is not “bound” to apply those rules; it is not a prohibition upon the Tribunal applying those rules if it sees fit.

73    On the issue of the judgment of criminal guilt, in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [184]-[187] Colvin J noted that it was important to bear in mind an administrative decision-maker does not undertake a fact-finding task of the same character as that undertaken by a court and that evidence in the Tribunal is simply the material before the Tribunal, however received. His Honour continued that the weight to be afforded particular material depends upon the seriousness of the allegation the decision-making was asked to accept, any inherent unlikelihood of its occurrence in the gravity of the consequences that may flow from making the finding. His Honour referred to the observations by Dixon J in Briginshaw at p 363 that “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained”.

74    In Briginshaw at p 363, Dixon J continued that “When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is to be given to the presumption of innocence and exactness of proof is expected”.

75    The applicant contends that the Tribunal demonstrated no appreciation of the fundamental precepts central to the administration of the criminal justice system before concluding that the allegations were made out on the limited evidence before it and that any assessment of the logicality, rationality and reasonableness of the factual findings should be viewed accordingly.

76    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130], Crennan and Bell JJ in considering the state of satisfaction required under s 65 of the Act (as is the case here) said:

… accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

77    At [135] their Honours continued:

…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

78    The Minister submitted that at its heart, ground one involves an attempt to impermissibly persuade the Court to review the merits of the Tribunal’s factual findings and that the Court is being asked to overturn findings of fact on judicial review which requires a standard of illogicality or irrationality which are described in terms of being “extreme” in the sense that no rational or logical decision-maker could make the finding in question: SZMDS at [130].

79    I do not consider the applicant was contending that it was necessary for the Tribunal to embark upon a consideration of the issues before it to the required criminal standard. That is clearly not the case.

80    I am acutely aware that the role of the Court on judicial review is not a merits review. So too, I am acutely aware that a court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130].

81    In assessing the material before it, the Tribunal had to afford it such weight that reflected the grave seriousness of the allegations the Tribunal Member was asked to accept. In these particular circumstances, that weight was also informed by the fact that the applicant was self-represented, had an extensive history of alcohol abuse, had an apparent low level of literacy, that questions had arisen during the applicant’s examination by psychiatrists as to the level of his cognition arising from past trauma and the grave consequences that would flow from arriving at a conclusion that the applicant had committed offences for which he had not been prosecuted far less convicted.

82    The Full Court’s statements in Sullivan at [119]-[121] are instructive. The manner in which the Tribunal Member arrived at the central conclusion on limited evidence, with a self-represented applicant with an apparent low level of literacy, and in circumstances where the applicant had not been prosecuted, that nonetheless the applicant had committed two offences of rape, one offence of indecent assault and one offence of assault, demonstrates a lack of caution in evaluating the factual foundation for the Tribunal Member’s decision.

83    Whereas there was material before the Tribunal Member as to the applicant’s prior convictions, the material relied upon by the Tribunal Member in the circumstances described to make the findings of fact which quite clearly formed part of the Tribunal Member’s reasoning and which are impugned by the applicant (being the four alleged offences) are findings which, in my view, no rational or logical decision-maker could make in the particular circumstances, far less use those findings to reach the conclusion that the applicant is a danger to the Australian community: SZMDS.

Materiality

84    The Minister submitted that if there was an error, it was not material.

85    Not all errors of law are fatal to a decision: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47], 264 CLR 421, per Bell, Gageler & Keane JJ; Hossain v Minister for Immigration [2018] HCA 34, 264 CLR 123 at 130 at [17]-[31], per Kiefel CJ, Gageler and Keane JJ.

86    The Minister contends that jurisdictional error will only arise in circumstances where the error in question is material and that the error in this matter, if it exists, is not material.

87    In SZMTA at [45]-[46], Bell, Gageler and Keane JJ said:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

88    The Minister refers to the Reasons at [81] where the Tribunal Member said:

Taking the expert evidence and the Supreme Court’s assessment into account, I am satisfied that there is a high risk that the Applicant will re-offend. There is no evidence that the Applicant has raped anyone since 2006 which suggests that there is less of a risk that he would commit that particular offence now. However, I am not satisfied that there is no risk or only a negligible risk of that happening. Given the seriousness of that offending any material risk makes the Applicant a danger to the Australian community. I am satisfied that the high risk applies to assaults and indecent assaults including on young persons. On account of that, the Applicant is a danger to the Australian community.

[emphasis added]

89    The Minister submits that it is apparent from this passage there were two independent bases in the Tribunal’s finding that the applicant was a danger to the Australian community. In so doing, the Minister draws a distinction between the rapes prior to 2006 on the one hand and “the high risk” which exists which applies to assaults and indecent assaults including on young persons.

90    As to the first asserted independent basis, I have found that the Tribunal Member’s assessment that the applicant committed two rapes in 2005 and 2006 respectively such that he is a danger to the Australian community, is illogical, irrational and/or unreasonable. Accordingly, the evidence that the applicant has not raped anyone since 2006 suggests there is less of a risk he would commit that particular offence now is based on a flawed premise.

91    The second independent basis is that “the high risk” the applicant will “re-offend” applies to assaults and indecent assaults, including on young persons. The Tribunal Member found the applicant committed offences of assault and indecent assault on 14 September 2015 and 8 May 2012 respectively, notwithstanding the absence of any prosecution. It is for the same reasons as I have found the Tribunal Member’s finding that the applicant committed rape in 2005 and 2006 was illogical, irrational and/or unreasonable that the Tribunal Member’s finding the applicant committed assault and indecent assault on 14 September 2015 and 8 May 2012 respectively is illogical, irrational and/or unreasonable.

92    In reaching the conclusion that “the high risk” applies to assaults and indecent assaults including on young persons, the Tribunal Member has not differentiated between those offences for which the applicant was prosecuted and those for which he was not prosecuted. By co-mingling the applicant’s convictions with alleged offences for which he was not prosecuted, the second independent basis is also based on a flawed premise such that the Tribunal Member has engaged in reasoning which was illogical, irrational and/or unreasonable.

93    The Minister submitted further that a materiality problem exists in relation to the second independent basis because having regard to the Tribunal’s reasons as a whole, it is apparent this finding would have been made even if the Tribunal did not accept the applicant had committed any of the four offences in question.

94    I do not accept that submission. In SZMTA the High Court said a breach is material to a decision only if compliance could realistically have resulted in a different decision. The Tribunal Member approached the question of whether the applicant was a danger to the Australian Community by reference to the risk of further harmful conduct and the seriousness of the harm involved. As I have noted above, that approach and the conclusion reached was predicated on rapes which the Tribunal Member found occurred prior to 2006, notwithstanding the applicant was not prosecuted for either offence and also an offence of assault and indecent assault for which he was not prosecuted. It is those alleged offences which form an integral part of the Tribunal Member’s reasoning in concluding that the applicant is a danger to the Australian community: Reasons [81].

95    The Minister’s submission that to the extent an error was made by the Tribunal Member it was not material in the sense it cannot be concluded that there was a realistic possibility of the result of the case being different but for the alleged errors asserted by ground one cannot be accepted.

96    It is for these reasons that ground one is made out and the application should be allowed.

Ground two

97    In view of my conclusion on ground one, it is not strictly necessary to consider ground two, nonetheless I do so.

The parties’ submissions and consideration

98    The applicant submits that as part of its assessment as to whether the applicant was a danger to the Australian community, the Tribunal had regard to offences which did not meet the description of a “serious Australian offence” as defined in s 5(1) of the Act.

99    The applicant refers to the sentencing remarks of Bampton J in the South Australian Supreme Court at [17]:

In summary, the convictions relevant to my sentencing of [the applicant] and the application pursuant to s 57 of the [Sentencing Act 2017 (SA)] are the indecent assault on 13 February 2007, the indecent assault committed 10 years later on 7 July 2017, the indecent behaviour on 2 September 2013, and the grossly indecent act on 3 October 2014. The indecent assaults, contrary to s 56 of the [Criminal Law Consolidation Act 1935 (SA)], are minor indictable offences. The indecent behaviour and grossly indecent act, contrary to s 23 of the Summary Offences Act 1953 (SA), are summary offences. Offences under s 56 of the [Criminal Law Consolidation Act 1935 (SA)] and s 23 of the [Summary Offences Act 1953 (SA)] fall within the definition of “relevant offence” in s 57 of the [Sentencing Act 2017 (SA)].

[footnotes omitted]

100    The applicant submits that the “summary offences” identified by Bampton J above could not meet the statutory description of a “serious Australian offence” in s 5(1) of the Act because the maximum penalty for the offences under the Summary Offences Act 1953 (SA) were between 3-6 months imprisonment. That may be so but the offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) carries a maximum term of imprisonment of eight years. Further, s 36(1C) of the Act refers to “a particularly serious crime” [emphasis provided].

101    The Minister submits that the reference by the Tribunal Member, if that be the case, to these summary offences is immaterial. The Minister submits that although the Tribunal considered summary offences in the course of its reasons: at [42]-[43] (indecent behaviour) and [45]- [47] (grossly indecent act), it is clear that such offending played no material part in its ultimate conclusion that the applicant represented a “danger to the Australian community”.

102    I accept that submission. At Reasons [81], the Tribunal referred to a high risk of assault and indecent assault. I have found the Tribunal Member co-mingled offences for which the applicant was not prosecuted with offences for which the applicant had been convicted. Nonetheless, it is not immediately apparent to me that the Tribunal took the summary offences of indecent behaviour and grossly indecent act into account in reaching its conclusion but if it did so, I do not consider that to be a material error capable of amounting to jurisdictional error. Put another way, any consideration of these summary offences is overshadowed by the alleged rapes and the alleged assault and indecent assault relied upon by the Tribunal Member as part of the reasoning.

103    Accordingly, I do not accept the applicant’s submission.

104    Next, the applicant submits that in assessing the question of whether there is any “danger to the Australian community”, the statutory construction of s 36(1C)(b) of the Act is such that the Tribunal may only have regard as part of its risk assessment crimes which in and of themselves are of the same character or magnitude as the “particularly serious crime” that initially enlivens the application of s 36(1C)(b). The applicant also submits that the fact of a “particularly serious crime” cannot, of itself, immediately give rise to a conclusion that a person is a “danger to the Australian community” and that the evident legislative policy behind the enactment of s 36(1C) of the Act is to only take the quite drastic step of disentitling a person from effective protection if “by reason of their past criminality [they] pose a danger to the Australian community”.

105    The Minister submits that there is not an inherent “like for like” link between the two concepts in s 36(1C)(b) of the Act of a “particularly serious crime” and a “danger to the Australian community”. Accordingly, the Minister submits the two concepts are not “related in any proportionate or balancing way”. Still further, the Minister submits the assessment is multifactorial: FSKY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 2; 295 FCR 625 at [40], [41] citing with approval WKCG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2009] AATA 512; 110 ALD 434 at [25]-[31] (Tamberlin DP).

106    I accept that submission.

107    Still further, the Minister submits that that meaning of “danger” must take on its ordinary meaning and that the word “danger” connotes both a qualitative and quantitative risk: FSKY at [60]. Under those circumstances, the requirement that a person must have committed a “particularly serious crime” is a “gateway” to the second limb of s 36(1C)(b) applying but does not mean that the concept of “danger” is limited to that arising from “like for like” crimes.

108    I accept that submission.

109    Finally, the applicant submits that further or in the alternative the Tribunal erred in considering unproven allegations of summary offences in determining whether he was a danger to the Australian community. I understood the submission to be that the applicant is referring to offences which are unproven but do not come within the definition of a “particularly serious crime”. It is for the same reasons I have set out in [102] above that I do not accept that submission.

110    It is for these reasons that ground two fails.

Conclusion

111    The application must be allowed.

112    There will be orders extending the time within which the applicant may apply for judicial review, setting aside the decision of the Tribunal and remitting the matter to the Tribunal, differently constituted for redetermination according to law.

113    I will hear the parties on the question of costs.

Associate:

Dated:    15 December 2023