Federal Court of Australia

SGTX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 27

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to commence proceedings for judicial review is granted.

2.    The application for judicial review is dismissed.

3.    The Applicant pay the First Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

1    This is an application for an extension of time and an application for judicial review of a decision of the Administrative Appeals Tribunal made under s 500 of the Migration Act 1958 (Cth). The Tribunal affirmed a decision not to revoke the mandatory cancellation of the Applicant’s visa.

2    Because the application for judicial review was not filed within 35 days of the Tribunal decision, an extension of time is required. The Tribunal made its decision on 10 August 2022. The application for an extension of time with this Court was filed on 27 October 2022. At the time of filing the application for an extension of time, the Applicant was not represented. The First Respondent has consented to the extension of time and that extension will be granted.

3    The matter for consideration is whether the Applicant’s grounds for judicial review are made out.

Background facts

4    The Applicant was the holder of a Refugee and Humanitarian (Class XB) (subclass 200) visa.

5    The Applicant is in his mid-20’s. He was born in a refugee camp in Ethiopia where his family was living after fleeing the civil war in South Sudan. The Applicant’s father died when the Applicant was about six years old.

6    The Applicant arrived in Australia when he was nine years old with about 10 of his family members. He completed secondary school in about November 2015.

7    In August 2016, the Applicant was sentenced on a guilty plea to 18 months’ detention in a Youth Justice Centre on charges of aggravated burglary, theft of two motor vehicles, dangerous driving and breach of bail. The offences were committed in December 2015.

8    In November 2016, the Applicant pleaded guilty to breaching bail, theft, recklessly causing injury and aggravated burglary. The offences were committed in April 2016. The Applicant was sentenced to detention in a Youth Justice Centre for two years and eight months.

9    In September 2017, the Applicant was sentenced to 10 months’ detention in a Youth Justice Centre having been found guilty of committing an indecent act on 20 November 2015 with a child under the age of 16.

10    The Applicant has also committed other offences namely possessing a prohibited weapon and theft of a motor vehicle while on bail.

11    On 20 January 2017, having been sentenced to a term of detention at a Youth Justice Centre for a period of at least 12 months, the Applicant’s visa was mandatorily cancelled. The Applicant sought the revocation of the cancellation decision.

12    On 27 June 2018, the Minister decided not to revoke the cancellation decision under s 501CA of the Migration Act. The Applicant sought review of that decision.

13    On 18 November 2019, this Court set aside the non-revocation decision and remitted the matter for determination.

14    On 18 May 2022, a delegate of the Minister again decided not to revoke the cancellation (the second non-revocation decision). On 26 May 2022, the Applicant sought review by the Tribunal of the second non-revocation decision.

15    On 10 August 2022, the Tribunal affirmed the second non-revocation decision. The Applicant seeks judicial review of the Tribunal’s decision.

Statutory CONTEXT

16    It was not disputed that the Applicant had not passed the character test in s 501(6)(a) of the Migration Act. The issue before the Tribunal was whether there was “another reason” why the cancellation decision should be revoked. Pursuant to s 499(2A), that issue was required to be determined in accordance with Ministerial Direction 90.

17    In Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144, the Full Court identified the various components of the Direction (at [9]–[11]):

[9]    In Pt 1 of the Direction, the preamble in para 5 identifies objectives of the Act with regard to the refusal or cancellation of a visa on character grounds and sets out principles that provide the framework within which decision-makers should approach their task in making the relevant decision.

[10]    Part 2 of the Direction deals with ‘Exercising the discretion’. It provides that a decision-maker must take into account the considerations identified in paras 8 and 9, where relevant to the decision (para 6). Paragraphs 8 and 9 identify ‘Primary considerations’ and ‘Other considerations’ respectively. It is provided that primary considerations should generally be given greater weight than the other considerations (para 7(2)).

[11]    Paragraph 8 identifies four primary considerations in the making of a relevant decision, namely (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community.

18    The “Other considerations” which the Direction requires to be taken into account include:

(a)    international non-refoulement obligations;

(b)    extent of impediments if removed;

(c)    impact on victims; and

(d)    links to the Australian community, including:

(i)    strength, nature and duration of ties to Australia; and

(ii)    impact on Australian business interests.

19    This application concerns the primary consideration of protection of the Australian community from criminal or other serious conduct and other consideration concerning the consequences of non-revocation of the cancellation of the Applicant’s visa.

Reasons of the Tribunal

20    The Tribunal considered each of the primary considerations.

21    In relation to the primary consideration of protection of the Australian community, as required by cl 8.1(2) of the Direction, the Tribunal considered:

(a)    the nature and seriousness of the non-citizen’s conduct to date (Tribunal Reasons [27]–[31]); and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (Tribunal Reasons [32]–[49]).

22    The Tribunal found the Applicant’s offending to be “very serious”: Tribunal Reasons [31].

23    In considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal had regard to:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (cl 8.1.2(2)(a) of the Direction and Tribunal Reasons [34]–[36]); and

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

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

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

(cl 8.1.2(2)(b) of the Direction and Tribunal Reasons [37]–[49]).

24    In considering the likelihood of further criminal or other serious conduct, the Tribunal recorded the following in its reasons:

[45]    A factor relevant to the likelihood of re-offending is the ‘evidence of rehabilitation achieved by the time of the decision.’ The applicant has indicated, and I accept, that he will, if released, engage further with an appropriate provider of sexual rehabilitation services. That indication is a positive factor, but it remains the case that the applicant has not fully completed a sexual rehabilitation course. I am concerned that he pleaded not guilty to the sexual offences and that he maintained his innocence for a period after being found guilty. I note that the sentencing Judge placed great weight on the ‘rehabilitation of young offenders’. The applicant was subsequently given an opportunity to fully engage with the MAPPS course but he did not do so. He did attend some sessions but, as Mr Simmons accepted at [22] of his report, there is no information available to indicate how successful that was. In the absence of that objective evidence I am not prepared to accept that he is sufficiently rehabilitated with respect to his sexual offending.

[46]    It was unfortunate that he went into immigration detention before completing the course and that he has not had a further opportunity to complete the course whilst in detention. That opportunity could be taken up by the applicant if he were released but I am required to consider, amongst other things, the evidence of rehabilitation achieved by the time of my decision. I consider that the evidence shows insufficient rehabilitation.

(citations omitted.)

25    In reaching these conclusions, the Tribunal considered the evidence of Dr Zimmerman (a forensic psychiatrist who examined the Applicant on 21 June 2018 at the Youth Justice Centre and prepared a report dated 2 July 2018) and Mr Simmons (a psychologist who interviewed the applicant by video on 4 July 2022 and prepared a report dated 12 July 2022).

26    The Tribunal recorded at [42] of its reasons:

Dr Zimmerman made a risk assessment for sexual re-offending and concluded that he had a low risk of sexual or violent re-offending. Dr Zimmerman gave oral evidence to the Tribunal and was asked to comment on the reports dated 8 February 2018 and 6 August 2018 which she had not seen when writing her report in July 2018. She expressed concern about the applicant’s limited engagement with MAPPS and said that if she had known this further information in 2018 her opinion would have been that he presented a low to moderate risk of sexual re-offending. Dr Zimmerman emphasized that she was not able to give a current assessment of risk of further re-offending because she has not re-examined the applicant since 2018.

27    The Tribunal recorded the evidence of Mr Simmons at [43] and [44] of its reasons. In his report Mr Simmons expressed his opinion that it appeared the Applicant is of low risk of re-offending. In oral evidence, Mr Simmons “said the additional information about the applicant’s limited engagement with MAPPS may increase the risk but he maintained his opinion of a low risk of sexual re-offending.” (Tribunal Reasons [44]).

28    The Tribunal accepted (at Tribunal Reasons [47]) the psychiatric evidence of Dr Zimmerman that the Applicant:

…shows an ability and willingness to engage with professional services and has plans for how he wishes to live in the community if he is returned there. He has a close and supportive family and would return to live with his mother. He has personal support from his extended family including an uncle and cousins. As noted, he has been compliant and responsive in Malmsbury and also indicates a preparedness to continue engaging with the MAPPS program if released to the community. He has shown a vulnerability to stress when in the custodial environment but I note that there had been no previous evidence of any depressive or anxiety symptoms prior to his incarceration that would suggest a future problem in this area.

29    The Tribunal concluded that the risk of further sexual re-offending was within the low to moderate range: Tribunal Reasons [49].

30    At [50] the Tribunal concluded:

The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. The applicant has committed serious crimes of a sexual and violent nature which if repeated would cause serious harm. Whilst the applicant has expressed a genuine desire to continue to engage with available rehabilitative services if released into the community, he has not yet engaged sufficiently with the rehabilitative services for sexual offenders. Further, I consider that the harm that would arise from further similar offending is so serious that even a low or low to moderate risk of further offending is unacceptable. There is an unacceptable risk of significant harm to the Australian community if the applicant were released and therefore the protection of the Australian community is a factor that weighs heavily against revoking the cancellation decision.

(citations omitted.)

31    In its consideration of “other considerations”, the Tribunal considered the consequences of the cancellation of the Applicant’s visa. The Tribunal observed at [83]–[86] of its reasons:

[83]    The applicant has no official documentation linking him to South Sudan. The applicant contends that he is ‘de-facto stateless’ and that it would be extremely difficult for him to gain South Sudanese citizenship. This may represent a practical impediment to his removal under s 198(2B) which would result in further detention with an adverse consequence to the applicant. I note in any event that there are laws in South Sudan which operate to confer South Sudanese citizenship on persons with parents born in what is now South Sudan.

[84]    The applicant contends that if the cancellation decision is not revoked that he will either be removed to South Sudan or detained indefinitely. In either event, the consequence for the applicant would be devastating. If a protection visa application were lodged, then it is asserted that the applicant will be trapped in detention in the intervening period.

[85]    I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Given the mental condition of the applicant which has deteriorated whilst in detention, this would have severe consequences adverse to the applicant. In WKMZ, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:

… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.

[86]    The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.

(citations omitted.)

32    The Tribunal relevantly concluded at [96]–[97]:

[96]    The primary considerations of the protection and expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision. The countervailing factors are the best interests of children (a primary consideration) and the other considerations of international non-refoulement, extent of impediments if removed and links to the Australian community. In addition, there are the risks of harm if removed and the consequence of indefinite detention if the cancellation decision is not revoked. I have decided that the primary considerations of the protection and expectations of the Australian community outweigh the countervailing factors.

[97]    The principles at paragraph 5.2 of Direction 90 which provide the framework for my decision-making task focus on the expectation that non-citizens are law abiding and will not cause harm to individuals or the Australian community…The applicant is not sufficiently rehabilitated and there remains a real, albeit low to moderate, risk that he will engage in further sexual offending. That level of risk is unacceptable. The principle in paragraph 5.2(5) underpins my conclusion because I consider that the inherent nature of the sexual offending involving some violence against a 13-year-old girl is so serious that even the strong countervailing considerations mentioned above are insufficient to justify revoking the cancellation decision.

Grounds of Review

33    The Applicant contended that the Tribunal fell into jurisdictional error by:

(1)    making irrational or legally unreasonable findings about the Applicant’s future risk of re-offending; and/or

(2)    making a decision that was legally unreasonable or “not giving proper, genuine and realistic consideration to representations made by the Applicant, when dealing with the legal consequences of ss 189 and 198(2B) or (6) of the Migration Act by reason of the Applicant being de facto stateless.”

Ground 1

Applicant’s Contentions

34    By particulars to Ground 1, the Applicant contended that:

A.     The [Tribunal] found the Applicant had not ‘sufficiently rehabilitated’ because he did not complete and had ‘limited engagement with’ a sexual reoffending rehabilitation program, namely the Male Adolescent Program for Positive Sexuality (MAPPS) program, despite evidence showing:

•    The Applicant had participated in the MAPPS program;

•    There was no evidence that the Applicant had failed to participate in that treatment once commenced;

•    The Applicant gave evidence about his learnings from the program; and

•    The sole reason the Applicant could not complete the course was because he was removed into immigration detention where the program was not provided.

B.     The [Tribunal] also found the Applicant had not ‘sufficiently rehabilitated’ because there was no ‘objective evidence’ to demonstrate the Applicant’s rehabilitation in respect of his sexual offending in circumstances where:

•    Expert evidence determined the Applicant was a ‘low’ or ‘low to moderate’ risk of sexual reoffending;

•    The [Tribunal] accepted the Applicant would engage in sexual rehabilitation services if released into the community;

•    The [Tribunal] accepted the Applicant had behaved during his time in youth justice and immigration detention settings, and demonstrated an admirable attitude to his education and self-improvement; and

•    It was impossible for the Applicant to demonstrate his rehabilitation by reason of his extended detention in youth justice detention, immediately followed by immigration detention.

Consideration

35    The risk to the Australian community should the Applicant commit further offences is a mandatory consideration by reason of the Direction. The risk to the Australian community is to be determined by evaluating the gravity of the consequences of the conduct and the likelihood of a person engaging in that conduct: Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [89]–[104]. In some cases the harm caused by conduct, if repeated, may be so devastating that any risk that it may be repeated would be unacceptable.

36    It may be accepted that it would amount to jurisdictional error if the Tribunal reached a state of satisfaction in relation to there being no “other reason” to revoke the cancellation based on irrational or unreasonable findings about the Applicant’s risk of re-offending. An illogical or irrational administrative decision or an illogical or irrational finding of fact or reasoning along the way may involve jurisdictional error if the finding was not open on the evidence or there is no logical connection between the evidence and the finding of fact: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].

37    Here, the Tribunal concluded that the Applicant’s risk of further sexual re-offending lay within the low to moderate range (Tribunal Reasons [49]). That assessment accorded with the evidence of Dr Zimmerman of what her assessment would have been in July 2018 if she had been aware of the information contained in a case note from the Youth Justice Centre dated 6 August 2018.

38    The Applicant submitted that the Tribunal’s conclusion at [46] “that the evidence shows insufficient rehabilitation” was irrational and/or legally unreasonable because it lacked a probative logical basis. The Applicant submitted that:

Firstly, there was evidence before the Tribunal which showed the Applicant had engaged with the MAPPS. There was no evidence on which the Tribunal could have relied to justify a finding that the Applicant’s engagement with the MAPPS had not been positive or beneficial after a period of initial hesitancy.

…

In the Applicant’s case, he commenced engagement with MAPPS in November 2017. Like all participants in MAPPS, the Applicant was directly challenged to speak about his offending behaviour to ensure he genuinely took responsibility and could make real changes. In light of this critical introspection, it is unsurprising that the Applicant faced difficulties engaging in the program initially. Indeed, he was candid before the Tribunal when accepting he had initially denied the sexual offending.

However, the Tribunal’s assessment of the Applicant’s engagement in the MAPPS could not rationally be confined only to that initial period. Indeed, the very nature of such treatment services and programs is to assist participants to develop over time. In the Applicant’s case, there was clear evidence that he had made positive developments. For example:

The Applicant gave evidence that he had completed eight sessions of the MAPPS as at July 2018 until his transfer from youth detention to immigration detention in August 2018 ended his ability to continue with the program. There was no evidence that, after having overcome his initial hesitancy to engaging in MAPPS, the Applicant failed to meaningly participate in this program too. The evidence of the Applicant’s time in youth detention showed he had consistently engaged well with all programs, counselling sessions and other activities he was involved in. There was no reason to assume the Applicant’s engagement in the MAPPS was any different.

Based on his time in the program, the Applicant had been able to reflect on his conduct and learnt about key concepts for safe and respectful sexual interaction with others including consent, respect for women and to always ask the age of people. The Applicant had also repeatedly and genuinely expressed his remorse for his conduct, including how it has impacted the victims of his crimes.

The Applicant had accepted his conduct was wrong and [had] good insight into factors contributing to his offending conduct, particularly associating with negative peers. At the time of sentencing in 2017, the Applicant had already developed ‘considerable insight’ into his offending. This was accepted by Judge Wischusen when he sentenced the Applicant in 2017. His insight into this issue remained ‘good’ when moved to immigration detention.

(citations omitted.)

39    These submissions are not accepted.

40    First, they mistake the Tribunal’s findings. The finding was not that the Applicant’s engagement with the Male Adolescent Program for Positive Sexuality (MAPPS) had not been positive or beneficial. The findings were that:

(a)    the Applicant had not fully completed a sexual rehabilitation course as at the date of the Tribunal’s decision; and

(b)    whilst in the Youth Justice Centre the Applicant had been given an opportunity to fully engage with the MAPPS course but he did not do so.

41    At [39] of its reasons, the Tribunal records:

…the evidence of specific rehabilitation for his sexual offending is of concern. The applicant accepted that he was given the opportunity to attend a sexual rehabilitation program with The Male Adolescent Program For Positive Sexuality (MAPPS) commencing late 2017 but that his engagement was limited. A report dated 8 February 2018 from a senior psychologist of MAPPS confirmed that the applicant initially refused to see any MAPPS clinician and maintained his innocence, despite having been found guilty of sexual offending. Subsequently, the applicant agreed to participate and attended his first assessment session on 27 November 2017. The applicant accepted before the Tribunal that he initially denied the sexual offending. His denial is confirmed by a case note dated 6 August 2018 which records that he refused to accept responsibility for the sexual offences and that he had shown limited engagement with MAPPS due to this. The applicant said that he completed 8 sessions at MAPPS but was then brought into immigration detention and was unable to complete the course. He said that he learnt about consent, respecting women and to always ask the age of people.

42    It was indisputable that the Applicant had not completed the MAPPS course prior to leaving the Youth Justice Centre and had not been able to attend any further MAPPS sessions since being brought into immigration detention upon his release from the Youth Justice Centre.

43    The findings of the Tribunal went beyond a finding that there had been an initial period of “hesitancy”. The finding was that the Applicant had not fully engaged with the course. This finding was based on the Applicant’s evidence before the Tribunal and the case note from the Youth Justice Centre dated 6 August 2018, prepared a couple of weeks prior to the Applicant’s release from youth detention and after the completion of the eight sessions he had attended. The Tribunal Reasons (at [39]) record the case note as stating that the Applicant (as at 6 August 2018) had refused to accept responsibility for the sexual offences and that he had shown “limited engagement with MAPPS due to this”. The case note recorded:

Today at 12.00 pm, the writer conducted an assessment interview…

[The Applicant] engaged well with the writer. Interview details are as follows:

…

Pro criminal Attitude - In terms of initial offences, [the Applicant] accepted responsibility for his actions. He reports that in regard to armed robbery and aggravated burglary offences, even though co-offenders had differing roles…each co-offender including himself are equally responsible.

…

[The Applicant] refused to accept responsibility for sexual offences although would not elaborate on this. He has shown limited engagement with MAPPS due to this.

44    Before the Tribunal the Applicant had accepted that his engagement with MAPPS was limited though he had completed eight sessions (Tribunal Reasons [39]). There was thus evidence before the Tribunal that having completed eight sessions, as at 6 August 2018, the Applicant “refused to accept responsibility for sexual offences”.

45    Second, the Tribunal considered the evidence before it showed “insufficient rehabilitation” achieved by the time of the Tribunal’s decision based on its assessment of that evidence as set out at Tribunal Reasons [45]. The Tribunal evaluated the material before it. A “positive” factor was the Applicant’s evidence, accepted by the Tribunal, that if released, the Applicant would engage further with an appropriate provider of sexual rehabilitation services. But the Tribunal weighed this intention of future engagement against the Applicant’s past attitude towards engagement with such services. In concluding that the Applicant was insufficiently rehabilitated in respect of the Applicant’s sexual (as opposed to his other) offending, the Tribunal had regard to the evidence of the case note of 6 August 2018, the fact that the Applicant had not completed the MAPPS course and the absence of objective evidence (as opposed to the subjective evidence of the Applicant) to indicate how successful any rehabilitation was.

46    The Applicant contended that the Tribunal’s reliance on the fact of “untested rehabilitation in the community” was illogical and legally unreasonable and that all the evidence went the other way. It was submitted that the Applicant’s rehabilitation was untested in the community for reasons outside of the Applicant’s control and it is not rational to infer from that untested rehabilitation that the Applicant had not sufficiently rehabilitated. Reliance was placed on the following passage in CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [79]:

…as observed by Mortimer J in Splendido (at [95]) and by Colvin J in Logan (at [24]), a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending. It is a negative finding about what is not known or established (because the appellant has not been living in the community), rather than a positive predictor of the appellant’s future behaviour.

47    Those submissions are not accepted. The Tribunal’s course of reasoning in this case was logical and coherent. The Tribunal did not base its concerns solely on the absence of “objective” evidence of conduct in the general community. The conclusion reached was based on the totality of the material before the Tribunal. The Tribunal expressed concern about the Applicant’s admitted lack of full engagement with the MAPPS course. The Tribunal’s concerns could not logically be allayed by evidence of the Applicant’s behaviour in the community. The reasoning difficulty referred to in CKL21 at [79], is not present in this case.

48    The Applicant submitted that the Tribunal’s conclusion in relation to insufficient rehabilitation was contrary to the “objective” and uncontradicted evidence before the Tribunal. The materials identified as “objective evidence” in oral submissions were:

(a)    an information sheet published by the Victorian Government entitled “Male Adolescent Program for Positive Sexuality (MAPPS)” in which the following statements are made:

Treatment effectiveness

MAPPS has a successful track record. An independent evaluation in 1998 found program effectiveness was demonstrated by:

•    A low recorded reoffending rate–only 5 per cent of 138 MAPPS clients over the 4.5 year review period committed further sexual offences (based on Victoria Police Information Bureau of Records and Youth Justice client information systems)…

(b)    the report of Dr Zimmerman, dated 2 July 2018, in which she observed that there was no evidence of failure to participate in the recommended treatment and concluded that the risk of sexual re-offending was low.

(c)    the report of Mr Simmons, dated 12 July 2022, in which Mr Simmons concluded that the Applicant presented a low risk of sexual re-offending. That report did not suggest any deficiency in the Applicant’s rehabilitation.

(d)    the remarks of sentencing judges in 2016 and 2017 to the effect that the Applicant had developed insight into his offending, matured and had showed remorse.

49    The Applicant’s construction of the information sheet is not supported by the context. The reference to “MAPPS clients” is to be construed as a reference to those who complete the program and not as a reference to those who enrol in it or attend some sessions. The information sheet describes five stages to the program. The effectiveness described in the quoted text is a description of the effectiveness of the program as a whole.

50    The Applicant’s submission in relation to Dr Zimmerman’s report is not accepted. First, in terms of engagement with MAPPS, Dr Zimmerman’s report stated:

[The Applicant] stated that he saw a counsellor from the Male Adolescent Program for Positive Sexuality on 8 occasions. He said that he would continue to attend the program if it was a condition of a community order. However, he did not wish to attend further sessions whilst he remains in custody, as he believed that he has attained a good understanding of respectful interactions with women.

…

Problems with treatment: [The Applicant] is noted to have participated in the MAPPS program in youth detention. However, I note his lack of enthusiasm for further sessions whilst he remains in custody. He did indicate that he would be willing to complete further sessions if required once he returns to the community. He indicated that he also engaged with and benefited from sessions with a psychologist. There is no evidence of failure to participate in recommended treatment. I believe that there is partial evidence of problems in this area because of his reluctance towards further work in custody.

51    In the Tribunal hearing Dr Zimmerman testified that if she had known about the Applicant’s limited engagement with MAPPS (as recorded in the case note of 6 August 2018), her opinion on risk assessment would have been “low to moderate” and that she could not give a current assessment of risk of further re-offending.

52    The Applicant’s submission in relation to the report of Mr Simmons is essentially a submission that his report ought to be preferred or accorded more weight than Dr Zimmerman’s report in assessing the Applicant’s risk of re-offending as at the date of the Tribunal’s decision.

53    Mr Simmons’ report had expressed his conclusion in the following terms:

[The Applicant]’s offending occurred when he was a much younger man and there is certainly evidence that he has benefited from the programs he has undertaken. On that basis as well as Dr Zimmerman’s conclusions with both the RSVP and HCR20, it appears that [the Applicant] is of low risk of further offending. Unfortunately, having spent so much time in custody, many of the normal maturational experiences that occur as a result of being in the wider community, such as engaging in employment or further study, interacting with others and forming romantic relationships have meant that [the Applicant] has not been able to necessarily have the experiences which would increase his level of maturity. Nevertheless, his time in custody has underlined the seriousness of how any further misbehaviour will be viewed.

54    Mr Simmons’ conclusion was expressed, at least in part, as based on Dr Zimmerman’s conclusions which she said she would have revised if she had had the information in the 6 August 2018 case note. Mr Simmons was asked if he would revise his opinion of the risk of re-offending in light of the evidence of the Applicant’s limited engagement with MAPPS which had not been factored into Dr Zimmerman’s report. His evidence was that he would not. To say that Mr Simmons’ report was uncontradicted and unchallenged does not accurately capture the totality of the evidence before the Tribunal in relation to the Applicant’s risk of re-offending.

55    This is not a case where there was a single cogent and unchallenged expert opinion before the Tribunal: cf RJE v Secretary to the Department of Justice (2008) 21 VR 526 at [17]–[20] (Maxwell P and Weinberg JA). The Tribunal had before it two expert reports, one of which had drawn on the other. The Applicant’s submission that Mr Simmons’ report ought to be preferred is a submission that goes to the merits of the Tribunal’s decision. The weight to be attracted to Mr Simmons’ report was a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]; DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (Beach, O'Callaghan, Anastassiou JJ). Given the manner in which Mr Simmons had framed his conclusions, it was not illogical for the Tribunal to not adopt the conclusion in his report notwithstanding Mr Simmons’ oral evidence that he would not change his conclusions on the Applicant’s risk of re-offending if account had been taken of the additional information about the Applicant’s limited engagement with the MAPPS program: see too Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1134 at [35]–[37] (Murphy J).

56    The remarks of the sentencing judge in 2016 to the effect that the Applicant had taken responsibility for his actions and understood the impact of his offending on his victims are to be understood in the context of the conviction of the offences for which he was being sentenced. The offences in question were not sexual. The case note dated 6 August 2018 recorded the Applicant as refusing to accept responsibility for the sexual offences whilst accepting responsibility for his other offending.

57    The remarks of the sentencing judge in 2017 contained the following statement:

Now I have taken into account the progress you have made whilst in the youth justice system. The sentencing hearing was adjourned so that a full presentence report could be obtained and earlier reports had been tendered in the proceedings before Judge Misso, as had a progress report, dated 7 July 2017, Exhibit 3. The Youth Justice Centre Suitability Assessment Report, dated 11 September 2017, Exhibit 6 on the plea, set out in some detail the author’s conclusion that you are considered suitable for detention in a youth justice centre. The authors noted that you have considerable insight into your offending. They noted also that you have been a dedicated student whilst in custody, have been compliant and polite and have engaged in all manner of programs that are made available within the youth justice system. The authors record that you appear to be well supported in the community by your family, with whom you have regular contact and that you have matured and shown considerable motivation towards rehabilitation. The authors clearly explain why they have assessed you as having reasonable prospects for rehabilitation and why they have concluded that a number of factors would operate to render you impressionable to undesirable influences in the adult prison system.

58    Again, those statements record the programs the Applicant had engaged in for offences other than sexual offences. It is not correct to suggest that given the Applicant’s progress with rehabilitation in 2016 and 2017, it only improved over time up until 2022 when the Tribunal was considering this matter. The Tribunal was considering the Applicant’s rehabilitation in relation to sexual re-offending and not the Applicant’s risk of re-offending in relation to the other offences for which he had been convicted and in respect of which he had engaged in all manner of programs.

59    The Tribunal did not engage in reasoning or make findings of fact that were illogical or irrational. The Applicant’s Ground 1 is not made out.

Ground 2

60    By Ground 2, the Applicant contends that the Tribunal’s decision was legally unreasonable or involved jurisdictional error by not giving proper, genuine and realistic consideration to representations made by the Applicant.

Applicant’s Contentions

61    The Applicant’s evidence (and accepted by the Tribunal) was that although born in Ethiopia, he was not a citizen of Ethiopia. He also does not hold citizenship of either Sudan or South Sudan.

62    It was submitted that the Applicant’s evidence clearly gave rise to a claim that if the Applicant’s visa were cancelled he would be de facto stateless and, given ss 189 and 198(2B) or (6) of the Migration Act, the Applicant faced the very real prospect of indefinite detention. The Applicant contended that the Tribunal did not meaningfully engage with this claim.

63    The Applicant referred to paragraph [83]–[86] of the Tribunal Reasons as set out at paragraph [31] above.

64    The Applicant submitted that the laws referred to by the Tribunal were not identified and the Tribunal did not consider how the laws may be applied to the Applicant in practice.

65    The Applicant accepted that the Tribunal “did not put the prospect of indefinite detention to one side” but rather that there “had not been a full engagement with the representations made by the [A]pplicant” because there was no reference to the practical challenges the Applicant would face in seeking to obtain South Sudanese citizenship.

66    Following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the parties were invited to make further submissions.

67    The Applicant submitted that the effect of the decision in NZYQ in declaring indefinite detention under the Migration Act to be unconstitutional meant that the Tribunal erred in accepting as lawful the possibility of the Applicant’s indefinite detention into the future. The Applicant contended that this resulted in the Tribunal misapplying s 501CA(4). Further, it was submitted that the Tribunal’s task remained outstanding because the Tribunal had not dealt with the question of whether or not the Applicant’s ongoing detention was unlawful.

68    The First Respondent accepted that to the extent that the Tribunal contemplated that a legal consequence of a non-revocation decision was that the Applicant would be indefinitely detained, the Tribunal was in error, in light of NZYQ. However, to the extent that the Tribunal erroneously considered indefinite detention to be a possible consequence, that error was not material.

Consideration

69    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [26] the High Court cautioned against the use of labels like “proper, genuine and realistic consideration” to representations made because such a formula has:

the danger of creating ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised’. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(citations omitted.)

70    The High Court went on to explain at [27]:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(citations omitted.)

71    The Tribunal Reasons need to be read and understood in the context of the entirety of the representations made to it. In the present case, the Applicant made representations and submissions in relation to a number of “other considerations” that related to consequences that were said to flow from a non-revocation of the cancellation decision. The Applicant articulated the prospect of Australia breaching its non-refoulement obligations in addition to a claimed fear of harm if removed to South Sudan and made representations concerning the impediments he may face if removed to South Sudan.

72    In its reasons the Tribunal stated that it intended to defer the substantive assessment of a claim of non-refoulement under domestic law because it is open to the Applicant to apply for a protection visa (Tribunal Reasons [69]). The Tribunal considered and accepted the Applicant’s concerns that he would likely face serious harm if removed to South Sudan (Tribunal Reasons [77]) and accepted that the Applicant would face significant impediments if removed to South Sudan (Tribunal Reasons [88]).

73    It was in the context of having made those claims, that the Applicant also made a contention that if the cancellation decision were not revoked, he would be “de facto stateless”. The claim was thus to be understood as a claim that if the cancellation of his visa was not revoked, the Applicant would possibly be stateless.

74    On a fair reading of the Tribunal Reasons, the Tribunal did not discount the possibility of the Applicant being rendered de facto stateless. The Tribunal Reasons reveal that it did consider the Applicant’s claim that he would be de facto stateless, accepting that “[t]his may represent a practical impediment to his removal…which would result in further detention” (pending the resolution of any further application for a protection visa) and should the Applicant either be removed to South Sudan or be indefinitely detained, “the consequence for the applicant would be devastating.” Read as a whole, the Tribunal cannot be taken to have ignored the Applicant’s claim of potential de facto statelessness.

75    In relation to the Applicant’s contentions, the following observations are made:

(1)    In the last sentence of Tribunal Reasons [83], the Tribunal did no more than note that there were existing laws in South Sudan that operated to confer citizenship on persons with parents born in South Sudan. The Applicant does not contend no such laws exist (in the form of The Nationality Act of 2011 (South Sudan)). The Tribunal did not err in failing to identify the laws by name.

(2)    The Tribunal did not reach a concluded view on whether the Applicant would be detained indefinitely as opposed to being removed to South Sudan in its consideration of the consequences of non-revocation of the earlier visa. This is consistent with the approach of the Tribunal in deferring consideration of the Applicant’s non-refoulement claims.

(3)    The Tribunal did not ignore, overlook or misunderstand the Applicant’s representations in concluding that the prospect of further detention is a factor that weighs in favour of the revocation of the cancellation of the Applicant’s visa. When considered in the context of the totality of the claims made, removal to South Sudan or de facto statelessness were submitted as possibilities. As the Tribunal observed, whether the Applicant would be detained indefinitely or be removed to South Sudan, “[i]n either event, the consequence for the applicant would be devastating”.

76    There was no failure by the Tribunal to consider a claim made by the Applicant. Nor did the Tribunal consider the claim in a manner that was illogical or legally unreasonable. The Tribunal considered the representations made to it.

77    The effect of the High Court’s decision in NZYQ is that there is no lawful possibility of the Applicant being detained under the Migration Act indefinitely. To the extent that the Tribunal considered indefinite detention to be a lawful possibility, the Tribunal erred, having regard to the decision in NZYQ.

78    The effect of the High Court’s decision in NZYQ is that the Applicant’s representations concerning the possibility of indefinite detention were also erroneous.

79    The Tribunal considered the possibilities of removal to South Sudan and indefinite detention (if the Applicant was stateless) to be matters which were weighed as countervailing factors against non-revocation of the cancellation of the Applicant’s visa: Tribunal Reasons [96].

80    The effect of the decision in NZYQ is that both the basis for the Applicant’s representation concerning indefinite detention, as made to the Tribunal, and the Tribunal’s consideration of it fell away. Contrary to the submissions made to it and the Tribunal’s reasoning, the possibility of indefinite detention was not a factor weighing in favour of revocation. In these circumstances, it cannot be said that the erroneous consideration of a submission which had been made on the basis of an erroneous understanding of the law resulted in the Applicant being deprived of the realistic possibility of a different outcome. The error by the Tribunal in considering a possibility of indefinite detention was not, in these circumstances, material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (2019); 264 CLR 421 at [45]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2].

81    The Applicant submitted that the Applicant cannot be lawfully detained in order to determine whether he could remain in Australia on a protection visa because the Applicant has not applied for a protection visa and even if he had applied for such a visa, it is not known how long the process for considering the application (including any review process) might take. The Applicant submitted that the Tribunal ought to have considered whether the Applicant’s detention will cross, or has crossed, the threshold from lawful temporary detention into unlawful indefinite detention.

82    The Applicant’s contention is not accepted. The lawfulness of the Applicant’s current ongoing detention is not a decision the subject of the Tribunal’s review.

83    This is not a case where the Tribunal’s misunderstanding of the law resulted in it overlooking or failing to give weight to a substantial and clearly articulated aspect of the Applicant’s case. The Tribunal considered the representations made to it about the possibilities facing the Applicant if the cancellation of his visa was not revoked. It found that either possibility would have devastating consequences for the Applicant. The Tribunal also considered the consequences for the Applicant should he make an application for a protection visa. The Tribunal took into account and weighed the impact of the prospect of further detention and the uncertainty of its duration whilst any protection visa application is considered in deciding whether to revoke the cancellation decision. The Tribunal’s error did not result in it failing to perform its statutory task.

84    This ground of judicial review is not made out.

DISPOSITION

85    The extension of time is to be granted. The Applicant’s grounds for judicial review are not made out. The application for judicial of review will be dismissed with costs.

86    The Court notes the observations made by the Full Court in CKL21 (at [96]) in relation to an apparent inconsistency in refusing to revoke the cancellation of a refugee visa while at the same time stating that the Applicant can subsequently apply for a protection visa. Should an application for a further protection visa be made, the grant of any such visa will require an evaluation by the relevant decision-maker of the material that is before the decision-maker at that time.

Associate:

Dated:    29 January 2024