Federal Court of Australia

Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    A writ of certiorari issue, directed to the second respondent, quashing its decision made 20 February 2024.

3.    A writ of mandamus issue, directed to the second respondent, requiring it to determine the applicant's application to review the decision of a delegate dated 28 November 2023 according to law.

4.    The first respondent pay the applicant’s costs of the proceeding, to be taxed in absence of an agreement.

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

REASONS FOR JUDGMENT

ROFE J:

INTRODUCTION

1    By an originating application dated 26 March 2023, the applicant applies to review the decision of the second respondent (the Tribunal) made on 20 February 2024: Muller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 224 (T). The applicant seeks judicial review of the Tribunal’s decision which affirmed the decision of a delegate of the first respondent (the Minister) under s 501(3A) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s BF Transitional (Permanent) visa.

2    For the reasons that follow, the application should be allowed with costs.

BACKGROUND

3    The applicant was born in Tonga. He arrived in Australia via New Zealand in 1981, when he was 19 years old. He has not left Australia since 1986. The applicant is the father of seven children, all of whom are Australian citizens and with whom he has a close relationship. He has 15 grandchildren who are also in Australia.

4    As set out at T [25], the applicant has a history of criminal offending commencing in 1982, varying in the nature of offences, including predominantly motor vehicle and driving offences and common assault. It is not necessary to set out the details of the earlier offences at great length.

5    What is relevant for the purposes of this proceeding is the applicant’s offending on the night of 30 June 2019 at the Cricketers Arms Hotel in Mooroopna, Victoria (the Mooroopna Incident). This incident, for which the applicant was sentenced at the County Court in Victoria to three years and nine months imprisonment with a non-parole period of two years and four months, was described by the Tribunal as the most serious of the applicant’s history of offending.

6    The Tribunal described the circumstances surrounding this offence at T [26]–[40], and specifically at T [30]–[35] gave a detailed recount of the events of the night on which the incident took place.

7    In brief summary, during the incident, the applicant, whilst inebriated, struck the side of the victim’s head with a schooner glass, which shattered. Shards of glass penetrated the victim’s head causing life threatening injuries, recovery from which was substantial and protracted. The incident has had a catastrophic life altering effect on the victim.

8    On 12 April 2022, the applicant was sentenced to three years and nine months imprisonment with a non-parole period of two years and four months.

9    On 28 March 2023, the applicant’s visa was cancelled under s 501(3A) of the Act.

10    On 24 April 2023, the applicant applied for revocation of the cancellation under s 501CA(4) of the Act.

11    On 28 November 2023, a delegate of the Minister refused the request to revoke the cancellation.

12    On 4 December 2023, the applicant applied to the Tribunal for review of the refusal of his revocation request.

13    On 20 February 2024, the Tribunal refused the applicant’s application.

14    The Tribunal’s refusal of the applicant’s application is now under review.

PROCEDURAL MATTERS

15    Before proceeding to consider the application, I must note a few matters at the outset.

16    On 10 April 2024, the Tribunal filed a submitting notice, reserving its right to be heard on the question of costs.

17    On 22 April 2024, I made orders by consent, timetabling the filing of material for trial and setting down the hearing on 13 June 2024. Per these orders, the Minister’s submissions in response were due on 10 June 2024. At the time, it was not appreciated that this date fell on the King’s Birthday public holiday. Per r 1.61(3) of the Federal Court Rules 2011 (Cth), the time for compliance was extended, and subsequently the submissions were filed the following day on 11 June 2024.

18    On 12 June 2024, the applicant’s representatives wrote to my chambers noting that they received the Minister’s submissions at 2.16 pm the day prior which raised a number of significant issues which they considered they did not have adequate time to contemplate, address and respond appropriately to at the hearing which was scheduled for the following day. On this basis, the applicant requested for the hearing to be adjourned and also to be provided with an opportunity to file submissions in reply.

19    I granted the adjournment requested and rescheduled the hearing to 21 June 2024. Further, I allowed the applicant an opportunity to file submissions in reply by 18 June 2024.

LEGAL FRAMEWORK

20    Section 501(3A)(a)(i) of the Act provides that the Minister, or their delegate, must cancel a visa that has been granted to a person if they are satisfied that the person does not pass the character test outlined in sub-s (6) as a consequence of having a substantial criminal record. Substantial criminal record is defined in s 501(7), and particularly at sub-s (7)(a), a person is considered to have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

21    The applicant concedes that he does not pass the character test, having been sentenced to three years and nine months imprisonment with a non-parole period of two years and four months.

22    Where such visa cancellation has occurred, the Minister is empowered under s 501CA(4) of the Act to revoke the cancellation if they are satisfied that, based on the representations made by the person regarding the original decision and in accordance with the Migration Regulations 1994 (Cth), there is “another reason” why the original decision should be revoked.

23    Pursuant to s 499 of the Act, the Minister may give directions in performing their functions and exercising their powers under the Act. The Tribunal noted at T [12] that the applicable Direction at the time of its decision was Ministerial Direction No. 99.

GROUNDS OF REVIEW

24    In contending that the Tribunal erred in its findings, the applicant advances the following six grounds of review:

(1)    The Tribunal took into account irrelevant considerations, namely the extent to which the applicant’s criminal offences resulted in cost to the taxpayer, diversion of public resources, and/or inconvenience to witnesses and the extent to which such costs, diversion of resources and inconvenience would be caused in future if the applicant were to re-offend.

(2)    The Tribunal failed to accord procedural fairness to the applicant and/or failed to give him a reasonable opportunity to present his case by failing to give notice that it would take into account the past and future possible costs to the taxpayer, diversion of public resources and/or inconvenience to witnesses.

(3)    The Tribunal misunderstood and/or misapplied para 8.1.2(2)(a) of Direction 99 by failing to genuinely consider whether the nature of the harm would be equivalent to the harm caused in the index offence, should the applicant engage in further criminal or other serious conduct.

(4)    The Tribunal misunderstood evidence before it, being the sentencing judge’s remarks about the events leading up to and during the Mooroopna Incident.

(5)    The Tribunal erred by taking into account its own analysis of the expectations of the Australian community and determining the expectations of the Australian community as to the personal circumstances of the applicant, contrary to para 8.5(4) of Direction 99, and in doing so applied an incorrect test and considered irrelevant considerations.

(6)    The Tribunal’s decision, particularly the language adopted at T [186], reveals that the decision was for a punitive purpose.

Ground One

25    Under this first ground of review, the applicant contends that the Tribunal took into account irrelevant considerations in the course of coming to its conclusion at T [84] that his offending was very serious and that substantial weight must attach to it against revocation of the mandatory cancellation.

26    In particular, in considering para 8.1.1(e) of Direction 99, which provides for “the cumulative effect of repeated offending”, the applicant contends that the Tribunal erroneously had regard to the potential significant deviation of public funds, arising from the applicant’s serious offending. This includes:

(a)    diversion of resources of the prosecuting authorities, police, courts and prisons (at T [75]);

(b)    the ‘very high’ cost to the taxpayer associated with imprisonment of an individual (at T [75]);

(c)    effects of the applicant’s offending on the payment by government and government agencies of criminal injury compensation and disability support (at T [87]);

(d)    demands of traffic offences on accident and compensation schemes operating in the states and territories (at T [88]); and

(e)    Court and Tribunal resources required to resolve contested compensation claims (at T [88]).

27    In advancing this ground, the applicant relies on the findings of Meagher J in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055 at [105] where her Honour held that she accepted:

… that the primary purpose of the revocation power is to protect the Australian community from harm and it is not concerned with the expenditure of public funds. The applicant submitted that while the considerations in Direction 90 are not exhaustive, the revocation power is concerned with a person’s "character" and the harm they might cause, and the consideration of the cost to the taxpayer is irrelevant to a person’s character. There is much force in this submission. In taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration.

28    The applicant submits the ratio in Buntin ought to be followed on this occasion as a matter of judicial comity.

29    Hill J has noted in Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190 at [14] that it is “… a matter of comity a Judge of this Court should follow another single Judge unless convinced that the previous decision was clearly wrong”.

30    Further, French J (as his Honour then was) elaborated in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [76] that:

[t]he injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction.

31    Jurisdictional error may arise where, in making a decision, a decision-maker takes into account a consideration that it is prohibited from being taken into account by the relevant statute. In Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, Mason J (as his Honour then was) explained at 40:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

32    The High Court has observed in a recent decision that “an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [7] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The majority in LPDT described the threshold of materiality at [14]–[16]. It is worthwhile setting out those paragraphs in full:

[14]     The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

[15]     What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

[16]     In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

33    While Direction 99 prescribes considerations to be taken into account by the decision-maker by reason of s 499(2A) of the Act, the Minister submits, and I accept, that it does not automatically follow that considerations not explicitly stated in Direction 99 are excluded from consideration.

34    There is no express or implied limitation in the Act or Direction 99 preventing the Tribunal from taking into account financial harm, or the impact on government resources, in assessing:

(a)    the cumulative effect of offending under para 8.1.1(e) of Direction 99; or

(b)    the risk to the Australian community should the non-citizen commit further offences under para 8.1.2 of Direction 99.

35    The Tribunal may, in an appropriate case, take these matters into account if it considers they bear on its assessment of a relevant consideration. This is consistent with earlier Federal Court authorities in which the effect of offending on government resources had been considered as a relevant factor by the decision-maker: e.g., James v Minister for Immigration and Border Protection [2017] FCA 410 at [46] (per Robertson J); BRK15 v Minister for Immigration and Border Protection [2016] FCA 1570 at [18(2)] (per Gilmour J); Tupai v Minister for Home Affairs [2018] FCA 986 at [48] (per Greenwood ACJ); Candemir v Minister for Home Affairs [2018] FCA 1360 at [14] (per Gleeson J); Hoang v Minister for Home Affairs [2019] FCA 956 at [6] (per Nicholas J).

36    At [46] in James, Robertson J observed:

[t]he burden on Australian legal and law enforcement institutions, and accompanying financial cost, of the cumulative effect of the applicant’s offending was not, in my opinion, a matter personal to him in the sense of the information involved in Kioa v West [1985] HCA 81; 159 CLR 550. It was also an obvious inference from the material. To say that it was obvious does not mean that every decision-maker would have drawn that inference but that it was obvious that a decision-maker may draw that inference. The Minister’s consideration was an obvious and natural evaluation of the material known to the applicant or a conclusion obviously open on the known material: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-592.

37    The applicant submitted that I must rule on the Tribunal’s consideration of the financial impacts in accordance with the finding in Buntin unless I consider those findings to be “clearly wrong” as set out in Hicks.

38    It does not appear that Meagher J was taken to the earlier Federal Court authorities that I set out at [35] above. With all due deference to her Honour, I do not consider that the conclusion that “the primary purpose of the revocation power is to protect the Australian community from harm and it is not concerned with the expenditure of public funds” (at [76] of Buntin) is consistent with those earlier authorities. The nature of revocation power conferred by s 501CA of the Act is broad and unfettered: BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 at [73] (per Moshinsky J).

39    In addition to the matters that must be considered under Direction 99, the only constraint placed on a decision-maker regarding the kinds of considerations they can take into account is limited to the fact that it must be both relevant and reasonable. Consistent with the earlier Federal Court authorities, the expenditure or diversion of public funds was a natural evaluation and obvious inference which the Tribunal could reasonably draw from the material before it: James at [46] (per Robertson J).

40    Accordingly, Ground One discloses no legal error by the Tribunal.

Ground Two

41    Under his second ground of review, and relevant to Ground One, the applicant claims to have been denied procedural fairness in that the Tribunal did not give him notice that it would take into account the past and future costs to the taxpayer and the diversion of public resources and, further, did not provide him with an opportunity to make representations in relation to these matters.

42    In advancing this ground, the applicant read and relied on the affidavit of his solicitor, Mr Damian Sean Dwyer of Australian Migration Lawyers, affirmed on 28 May 2024. In his affidavit, Mr Dwyer gave evidence that during his attendance at the hearings in this matter on 29 January, 2 and 5 February 2024, there was no invitation extended to either the applicant nor his representatives to make any submissions as to costs to taxpayers or the use of public resources as a result of the applicant’s offending. Further, Mr Dwyer did not recall any attention being drawn to these issues.

43    Whilst the applicant acknowledges that the phrase “financial harm” was contained in documentation before the Tribunal, the applicant maintains that he was not made aware by the Tribunal that consideration would extend beyond the financial impact on the victim (of the Mooroopna Incident) and include any potential harm to the community by way of diversion or drain on resources.

44    The Tribunal’s impugned failure to explicitly make the applicant aware of the fact that the impact of “financial harm” would be considered in a broad scope, coupled with the fact the applicant was not provided an opportunity to comment or make submissions on the broader implications is submitted to have led to the denial of procedural fairness.

45    Further, the applicant asserts that if the Tribunal took into account the harm to the community by way of diversion or drain on financial resources, then it should have weighed that against the fact that the applicant had been a contributing member of the community for a very long period of time both prior to and during his incarceration. The applicant notes that there was evidence before the Tribunal demonstrating his contributions, including the work he undertook and his engagement as a peer mentor to prisoners, and especially towards the younger cohort.

46    The applicant contends that the costs to the community should not have been considered in a broad and vague sense, but rather, they should have been quantified. Equally, in accordance with the accounting exercise advanced by the applicant, the applicant’s contributions should also have been quantified as offsetting the financial detriment to the community.

47    In advancing the utility of an accounting exercise, the applicant attempted to rely on the findings of Murphy J in Creamer v Minister for Immigration and Border Protection [2018] FCA 269 at [48]–[60]. These findings do not assist the applicant as Murphy J at [53] of Creamer expressly rejected the proposition that the Minister was required to engage in a precise arithmetical computation of Ms Creamer’s financial contribution to the Australian community as compared with the financial burden created through her incarceration.

48    The applicant further draws attention to the following findings of the Full Court in Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59 at [59]–[63] (per Rangiah, Thawley and Shariff JJ):

[59]    Assessing the course of proceedings fairly, and recognising that the proceedings are not strictly (but are in many ways practically) adversarial, the parties had not fought the case on the basis that the appellant’s alcohol problems, and the risk of associated violence, were such that the best interests of the children lay in the children being separated from their father.

[60]    If the Minister had raised a positive contention that the “best interests of the children consideration” weighed against revocation in closing submissions, or if the Tribunal had informed the appellant that it might not accept the Minister’s concession (cf: SZBEL at [47]), there can be no serious doubt that the appellant would have responded in reply submissions. The response may have been that this contention was not in the Minister’s SFIC or cross-examination, that the appellant was prejudiced by it, and that the appellant wished to be heard further on it, including by adducing further evidence or making submissions in reply.

[61]    The Tribunal had asked Ms Korat questions relevant to the “best interests of the children consideration”, but the Tribunal had not directly put to a witness, or raised as an issue with the appellant, that the “best interests of the children consideration” might weigh against revocation as opposed to a matter: (a) going to how strongly the matter weighed in the appellant’s favour; or (b) neutralising it as a matter in the appellant’s favour. The Tribunal did not raise the issue during submissions.

[62]    It is true, as the Minister submitted, that there was no obligation on the part of the Tribunal to provide a running commentary or to expose its mental processes or provisional views to comment before making the decision: SZBEL at [29]; Alphaone at 591-592. But that is not the issue. In light of the course of the proceedings, practical injustice could only be avoided if the appellant were provided an opportunity to address the issue which the Tribunal ultimately found against the appellant. This was not an issue put forward by the parties, it was not an issue which the Tribunal squarely raised, and it was not an issue which was obvious given the course of the administrative decision-making process and the course the proceedings had taken.

[63]    The denial of procedural fairness deprived the appellant of a realistic possibility of a different outcome: Nathanson at [1]. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on a critical issue: Nathanson at [33]. That general proposition applies here. The Tribunal heard no argument (from either party) about why the “best interests of children consideration” should not weigh against revocation. The Tribunal’s reasoning is not without difficulty. If the Tribunal had provided an opportunity for submissions on the topic, it may have reasoned in a different way and to a different outcome. If the Tribunal had concluded that this consideration weighed in favour of revocation, then the ultimate result necessarily might have been different: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [65].

49    The applicant maintains that while the bench in Korat was considering how the Tribunal there dealt with another primary consideration, the findings on procedural fairness hold equally here.

50    The present case can be distinguished from Korat. There, the Minister had conceded that the best interests of children consideration weighed in favour of revoking the cancellation of the visa. The interests of children were not presented as an “issue” there, like the interests of the community was weighed here, and was eventually weighed as a neutral factor. As such, the findings in Korat also do not help the applicant.

51    Paragraph 7.1 of Direction 99 requires that information and evidence from independent and authoritative sources be given appropriate weight. The applicant claims there were no clear figures, estimates or data before the Tribunal from which it could have reasonably assessed or quantified the financial burden he would place upon on the Australian community. The applicant maintains that he was deprived of the ability to address the Tribunal’s concerns regarding financial harm by not being given the opportunity to present to the Tribunal data from independent and authoritative sources.

52    I reject the contention that the applicant was not on notice of these issues before the Tribunal. As the applicant has acknowledged, the references to “financial harm” were contained in documentation before the Tribunal, and as such, he ought to have been on notice that the matter of financial repercussions was an issue before the Tribunal. The burden on the resources of the Australian police, courts and prisons, and accompanying financial cost, of the cumulative effect of the applicant’s offending was not a matter personal to him to be weighed against or set off against the value of the applicant’s contribution to the community. The Tribunal reached the conclusions at T [75] following the evaluation of the material that was before it and known to the applicant: James at [46] (per Robertson J).

53    I am not persuaded that the Tribunal fell into jurisdictional error by failing to provide the applicant with an opportunity to make representations as to the financial cost to the community of the applicant’s offending, or by failing to undertake an accounting style assessment which included weighing the financial cost to the community of the applicant’s offending against an assessment of the contributions of the applicant to the community.

54    Ground Two is therefore not made out.

Ground Three

55    The third ground of review concerns para 8.1.2(2)(a) of Direction 99 which provides:

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

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

56    The applicant contends that the Tribunal misunderstood or misapplied this paragraph by failing to genuinely consider whether the nature of the harm, should the applicant engage in further criminal or other serious conduct, would be equivalent to the harm caused in the Mooroopna Incident. Specifically, the applicant takes issue with T [134] which provides:

… Even though the applicant, for the reasons contended by him, may be categorised to be a low risk of reoffending when it comes to committing acts of violence, the Tribunal is concerned that if he were to commence drinking again, there must be a risk of him engaging in binge drinking behaviour as alluded to by Ms Ferrari. Therefore, his risks of violence and the concomitant risks to the Australian community would increase. In such circumstances, In such circumstances, if the applicant were to commit further acts of violence, the harm that would be caused, which if it were similar to that of the events of 30 June 2019, is so serious that the Tribunal must conclude that such risk that it may be repeated is unacceptable. Accordingly, very heavy weight must be placed on this primary consideration against revocation of the mandatory cancellation of the visa.

(As emphasised by the applicant.)

57    The applicant submits that this analysis, as undertaken by the Tribunal with respect to para 8.1.2(2)(a), was insufficient. The applicant says the Tribunal did not evaluate whether the harm that would occur if the applicant engaged in further acts of violence would be similar to that of the events of the Mooroopna Incident, and that any such analysis cannot be found anywhere in the Tribunal’s reasons.

58    The applicant contends that the Tribunal was bound to make this assessment even in the absence of specific submissions put by him on this point.

59    In Minister for Home Affairs v Stowers [2020] FCA 407, Yates J held the following in relation to para 13.1.2(1)(a) of Ministerial Direction No. 79 to which para 8.1.2(2)(a) of Direction 99 was formulated in similar terms (at [58]):

…Paragraph 13.1.2(1)(a) is, as I have said, forward-looking. It necessarily poses a hypothetical question. The nature of the respondent’s past offending might inform a decision-maker about the nature of any future conduct he might engage in. But the nature of any future conduct does not necessarily mirror each and every, or indeed any, aspect of the respondent’s former criminal conduct. The respondent had engaged in a range of different criminal or other serious conduct (various assaults including those involving domestic violence; stalking/intimidation; property offences; various driving offences; a bail offence; and violent conduct while in immigration detention) which would, or at least could, fall within the description “criminal or other serious conduct”. Paragraph 13.1.2(1)(a) required the Tribunal to turn its mind to, and identify, further criminal or other serious conduct that the respondent might engage in having regard to circumstances existing at the time of the decision, to evaluate the nature of the harm that might be suffered by relevant individuals or members of the Australian community should the respondent engage in that conduct. Paragraph 13.1.2(1)(b) then required the Tribunal to form an assessment of the likelihood of that criminal or other serious conduct occurring…

(Emphasis added.)

60    Similarly, in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111, Feutrill J held at [69] that the protection of the Australian community from criminal or other serious conduct:

… is directed to protection of the Australian community from the risk of harm should the non-citizen commit further offences or engage in other serious conduct. That necessarily requires an enquiry into and evaluation of the nature and seriousness of any potential harm and the risk or likelihood of that harm eventuating. A decision-maker upon undertaking that enquiry may conclude that the risk to the Australian community is unacceptable even if the risk is low or very low where the nature of the potential harm is sufficiently serious. The point here is that a decision-maker must assess risk and reach a view as to the extent to which the Australian community needs to be protected from the risk of harm the former visa-holder poses. No part of that evaluative exercise involves an assessment of the level of tolerance that the Australian community ‘ought to have’ for a particular kind of offending or risk in the abstract. The question of protection of the Australian community and its tolerance of the risk of harm must be assessed and evaluated by reference to factors specifically relevant to the non-citizen who has requested revocation. It is not an abstract assessment and evaluation of tolerance of risk of the Australian community.

61    His Honour further went on to elaborated at [74]:

… It is only after that risk has been assessed or evaluated that the decision-maker is then in a position to consider if the risk is acceptable or unacceptable having regard to the assessed risk to the community and other factors such as the tolerance of the community having regard to the particular circumstances of the non-citizen in question.

62    I do not accept the proposition that the Tribunal’s consideration and evaluation of the evidence before it falls short of what is contemplated under para 8.1.2(2)(a) of Direction 99.

63    The applicant acknowledged that the Tribunal engaged in an assessment of the likelihood of the harm reoccurring and apprehended that the nature of the harm that had occurred at the time of the Mooroopna Incident was unusual. The injury sustained by the victim was beyond what would normally be encountered in offending of this nature, compared to an offence which has a violent element. The appellate judge had commented that the sort of trauma inflicted by the incident was removed from glassing cases commonly before their Court: DPP v Muller [2022] VCC 513 at [43] (per Sexton J). The Tribunal also acknowledged that interactions between the applicant and the victim in the hours leading up to the Mooroopna Incident were friendly and jovial in nature. From the CCTV footage, it was observed that there was obvious banter between the individuals with the ultimate offending being exacerbated by the consumption of alcohol on the night. The Tribunal found that while the applicant does not appear to be a person prone to violence and that it considered the incident to be an anomaly, and indeed puzzling, there was evidence before it which indicated that there was risk of future offending. A factor in reaching this conclusion was the expert evidence before the Tribunal.

64    Forensic psychologist, Ms Carla Ferrari, produced a report dated 26 January 2024 following the assessment she undertook of the applicant (the Ferrari Report) and gave evidence before the Tribunal. The Ferrari Report contained Ms Ferrari’s observations regarding the applicant's relationship with alcohol, including his involvement in occasional binge drinking.

65    Based on this evidence, the Tribunal considered that there was a risk of the applicant drinking heavily again, and that risk that was exacerbated by him spending time again within the social milieu in which he spent his time prior to his key offending. The Tribunal was aware that the nature of violent behaviour when a person is inebriated is that it may have unintended consequences, which is what had occurred at the time of the key offending. The Tribunal was also concerned that despite the applicant’s best intentions to abstain from drinking altogether in the future, his abstinence has not been tested outside of incarceration: T [131]–[132].

66    There are extensive references to both Ms Ferrari’s oral evidence as well as the Ferrari Report, and subsequent analysis undertaken by the Tribunal of this material.

(a)    At T [110]–[133], there is a detailed examination of the Ferrari Report as well as evidence Ms Ferrari gave at the hearing before the Tribunal.

(b)    At T [126], the Tribunal “acknowledge[d] the force of the contentions advanced by the applicant which point to him being at low risk of reoffending. It is readily acknowledged that the factors articulated […] do provide a significant platform or support for such contention”. Consideration of these factors are further outlined at:

(i)    T [199], that the applicant posed a low risk of violence;

(ii)    T [122], that the events of the Mooroopna Incident appeared to be an “isolated incident”, and that the applicant did “not display any other antisocial behaviour or attitudes”; and

(iii)    T [123]–[124], that the risk of the applicant being volent would increase if he continued to engage in binge drinking behaviour, but that the applicant “could exercise restraint and would address his alcohol misuse if subsequently released into the community”.

(c)    At T [128], it was noted that Ms Ferrari recorded the applicant’s acknowledgement that he can have difficulty knowing when to stop drinking, and that the applicant accepted there is improvement to be made with respect to his relationship with alcohol.

(d)    At T [129], it was observed that the applicant’s partner “candidly” stated the applicant was a “binge drinker” and was “clearly alive to the problem that the applicant has or has had in the past concerning binge drinking habits”.

(e)    At T [132], the Tribunal noted its concern that while the applicant had remained abstinent since he was bailed, that occurred in context where he was under strict conditions restricting his access to alcohol, either while on bail or while in prison. The Tribunal went on to note that alcohol had clearly played a “significant role in the applicant’s life for most of his adulthood”, and was “intertwined in the way with which he socialises with people”.

67    At T [134], the Tribunal specifically referred to [126] of the Ferrari Report where Ms Ferrari stated in that passage that “[i]f Mr Muller continued to engage in binge-drinking behavior [sic] or his alcohol consumption increased to meet abuse/dependence, his risks of violence would increase”. The Tribunal then accepted that the applicant “may be categorised to be a low risk of reoffending when it comes to committing acts of violence”, but observed that if the applicant did commence drinking again, then the applicant’s “risks of violence and the concomitant risks to the Australian community would increase”.

68    Having regard to the above, I consider that the Tribunal did undertake its task in accordance with para 8.1.2(2) of Direction 99. The Tribunal considered at great length the applicant’s history of offending and the Ferrari Report prior to reaching its conclusion in T [134]. The applicant’s assertion that this paragraph falls short of the kind of evaluation contemplated by Stowers by being simplistic and insufficient must be rejected as it disregards the analysis undertaken by the Tribunal in the preceding paragraphs prior to the conclusion in T [134]. In making its determination regarding the risk of possible future offending, the Tribunal considered the factors underpinning the offending at the time of the Mooroopna Incident. It turned its mind to the applicant’s relationship with alcohol, both at the time of the incident and in a more holistic sense by taking into account the applicant’s partner’s candid statements, and the potential risk arising from this conduct.

69    Accordingly, Ground Three must fail.

Ground Four

70    The fourth ground of review was abandoned by the applicant prior to the hearing and as such, will not be considered here.

Ground Five

71    Under the fifth ground of review, the applicant alleges that the Tribunal misinterpreted its task under para 8.5 of Direction 99 by taking into account its own analysis of the expectations of the Australian community and/or determined the expectations of the Australian community by reference to the personal circumstances of the applicant. In doing so it misunderstood its task pursuant to para 8.5 of Direction 99 and misinterpreted the case law referred to at T [181] and the footnote to T [183].

72    Paragraph 8.5(1) and (4) of Direction 99 provide:

8.5 Expectations of the Australian Community

(1)     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. …

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

    (Emphasis added)

73    The purported error made by the Tribunal is said to be found in its reasoning at T [185]–[186]:

The Tribunal considers that when all the circumstances are taken into account, the expectations of the Australian community would weigh very heavily against revocation of the mandatory cancellation of the visa.

The details of the applicant’s convictions for offences involving violence have been described in detail earlier in these reasons. The Tribunal repeats that the act of striking the victim on the side of the head with the schooner glass was particularly violent. It was unnecessary and the jury rejected the applicant’s defence. This was notwithstanding that the victim was the instigator. Clearly, the applicant should have stepped back and attempted to defuse the situation, but he did not. The consequences were that the victim suffered horrific injuries. They were life changing injuries. It is more probable than not on the evidence before the Tribunal that the victim will suffer permanent disabilities and most likely never work again. The applicant had been binge drinking for a long time span on the day in question. The Tribunal agrees with the observations of Niall JA in the Court of Appeal that denunciation and general deterrence are very important factors to be taken into account. Alcohol fuelled violence is, as he also observed, a major social evil. Further, as he also observed, to use a glass as a weapon and smash it into the side of the victim’s head carries with it the gravest risk of serious injury and must also be denounced. The Tribunal also agrees with his observations that, to the extent they can, the courts must impose sentences that bring home the seriousness of this offending, the risk of serious injury that is involved and the catastrophic consequences that may follow. These observations reflect why the Australian community must have an extremely low tolerance for this kind of offending. This is notwithstanding the significant weight that the Tribunal has placed in favour of revoking the mandatory cancellation of the applicant’s visa by reason of the strength, nature and duration of the applicant’s ties to Australia and the best interests of minor children in Australia affected by the decision. The applicant’s offending involving violence was an example of a major social evil and, in such circumstances, the Tribunal concludes that the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.

(Emphasis added.)

74    It is the applicant’s contention that, in coming to the conclusion at the end of T [186], the Tribunal conducted its own assessment of what the Australian community would expect in the particular circumstances of the applicant’s offending. The applicant submits that the Tribunal’s use of the phrase “major social evil” highlights that the Tribunal was conducting its own assessment of community expectations in the circumstances of the applicant’s conduct, rather than proceeding on the basis of the deemed expectation set out in para 8.5(1) of Direction 99.

75    The Minister submits that the Tribunal did not impermissibly substitute its own assessment of Australian community expectations for those in para 8.5(1) of Direction 99. The Tribunal’s reference to “social evil” was instead a reflection on the seriousness of the applicant’s conduct, and not the Australian community’s expectations.

76    The applicant submitted that it was common ground that he had breached Australian law, so para 8.5(1) of Direction 99 applied. Thereafter, the task of the Tribunal was to determine whether the balance of the considerations raised in relation to paras 8.1 to 8.4 of Direction 99 raised sufficiently strong countervailing considerations to overcome the “general norm” in para 8.5(1) — i.e., that non-citizens that have breached the law should not be permitted to remain in Australia.

77    The applicant says the effect of paras 8.5(1) and (4) of Direction 99 is that when the circumstances that trigger sub-para (1) are applicable (which is common ground here), a norm applies and holds instead of any individual assessment of the expectations of the community in any particular case. On that construction, it is said that decision-makers are not to take into account personal considerations, or any other considerations about the seriousness of the offending or otherwise that might affect the content of the community’s expectations. If the norm applies, then the primary consideration says that the community expects that the visa cancellation would remain in force in the context of this case.

78    On the applicant’s construction, once triggered, the community expectation in sub-para (1) cannot be more applicable because of the seriousness of the offending nor less applicable because of personal circumstances of the applicant. It simply just exists.

79    It is evident from para 8.5(4) of Direction 99 that decision-makers, including the Tribunal, are required to assess the expectations of the Australian community as a whole, without assessing the community’s expectations “in the particular case”: Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791 at [15] (per Shariff J).

80    No part of para 8.5 directs the decision-maker to conduct and further weigh a second assessment of the seriousness of the offence additional to that required under para 8.1 (protection of the community). By considering the seriousness of the applicant’s offence in the context of the consideration required under para 8.5, the applicant submits that the Tribunal erred by double counting the seriousness and nature of the offending of the Mooroopna Incident in the context of the community expectations, as well as the protection of the community. This sort of double counting is impermissible: Jama v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 410 at [31]–[33] (per Markovic, Sarah C Derrington, Feutrill JJ).

81    The applicant says that the exercise undertaken by the Tribunal in this instance led to it attaching significant weight to the seriousness of the offending so as to exacerbate or aggravate the weight to be given to the expectations of the community rather than considering the applicant’s circumstances as part of the ultimate exercise of weighing between competing primary considerations.

82    The applicant submits that this error in approach is apparent from the cases on which the Tribunal purported to base its reasons (particularly, FYBR v Minister for Home Affairs (2019) 272 FCR 454 and Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396) and the remarks of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196 in obiter.

83    In Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (2023) 297 FCR 662, the Full Court stated the relevant task in respect of para 8.4 of Ministerial Direction No. 90 (which was worded in a relevantly identical way to para 8.5 of Direction 99) at [33]–[35] (per Moshinsky, Stewart and Jackman JJ):

[33]    … in FYBR it was held (by Charlesworth and Stewart JJ in separate judgments, Flick J dissenting) that the relevant clause:

(1)    expresses an expectation deemed by the Government to be held by the Australian community and that it is not the role of the decision-maker to undertake an assessment of what the community expectations are in each case (at [61], [66]-[67] and [75] per Charlesworth J and [86], [97], [101] and [103]-[104] per Stewart J); and

(2)    gives expression to an expectation that must of its nature weigh against the grant of a visa in every case (at [75] per Charlesworth J and [86] and [101]-[102] per Stewart J).

[34]    It was also held that it is up to the decision-maker, after having considered the primary and other considerations, to reach their own view as to whether the non-citizen should or should not be granted a visa or, in the case of a revocation decision, whether or not the cancellation of the non-citizen’s visa should be revoked (at [73] and [79] per Charlesworth J and [92] and [105] per Stewart J). That is to say, although Charlesworth J held that the deemed expectation of the Australian community is that if the non-citizen fails the character test they will have their visa refused or cancelled (at [72] and [75]) and Stewart J disagreed and held that the deemed expectation is that failing the character test will be held against the non-citizen but that the expectation does not speak to the outcome in any given case (at [97] and [103]), the majority were agreed the expectations of the Australian community, as expressed by the Government in the Direction, do not determine the outcome of the decision because all relevant factors have to be weighed up and considered.

[35]    Direction No. 90 is consistent with the above, save that it is even clearer in certain respects. First, it makes it express in paras 8.4(1) and (2) that the expectation of the community is not that failure of the character test should result in the non-citizen being denied a visa or their visa being cancelled – that expectation is confined to the particularly egregious types of cases set out in para 8.4(2). The character test as expressed in ss 501(6) and (7) of the Act can be failed on lesser bases. Secondly, para 8.4(4) expressly provides that “decision-makers should proceed on the basis of the Government’s views” as articulated in the Direction, “without independently assessing the community’s expectations in the particular case”.

(Emphasis added).

84    The High Court’s decision in Ismail was handed down shortly prior to the Tribunal publishing its decision in this matter. The High Court in Ismail opined on the correct approach to the “expectations of the Australian community” consideration in Direction 90, the predecessor to Direction 99, albeit as obiter. In Ismail, the plaintiff had engaged in family violence which raised serious character concerns. The delegate “proceeded on the basis that the Australian community’s general expectations about non-citizens, as articulated in [Direction 90] apply in this case”. It was contended on behalf of the plaintiff that the delegate had misapplied para 8.4 of Direction 90 as the “delegate was required to consider those expectations in light of the plaintiff’s personal circumstances and did not do so”: at [47] (per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ). The plaintiff argued that the expectations of the Australian community would have been affected by knowledge of the plaintiff’s personal circumstances, and that the delegate was required to, but did not weigh those personal circumstances in deciding what ultimate weight to give the expectations of the Australian community.

85    At [50], the High Court noted that the concluding section of the delegate’s reasons disclosed an overall weighing of all considerations against each other, observing that in the context of the ultimate weighing exercise, the delegate expressly weighed the plaintiff’s personal circumstances against, amongst others, the expectations of the Australian community. The High Court rejected the plaintiff’s argument, observing at [51]–[52] (per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ):

[51]    Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".

[52]    Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.

(Emphasis added.)

86    Here, the Tribunal recognised at T [181] that para 8.5(1) was a deeming clause which ascribes or imputes to the Australian community an expectation that wholly aligns with the expectation of the executive government of the day, and that those expectations are to be applied as norms.

87    However, the Tribunal then independently assessed the community expectation at T [186] in light of the personal circumstances of the applicant, his convictions, the life changing consequences to the victim of the incident, and the observations of the appellate judge as to alcohol fuelled violence being a “major social evil” to reach a conclusion that “in such circumstances the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked”. This independent assessment was not made in the context of the ultimate weighing up of the primary and other considerations to reach a final conclusion on whether to revoke the visa cancellation, but in the course of the Tribunal’s consideration of para 8.5.

88    I consider that, in taking into account the matters set out at T [186] and reaching the conclusion expressed at the end of that paragraph, the Tribunal has, contrary to the direction in para 8.5(4), undertaken its own assessment of the Australian community’s expectations in light of the personal circumstances of the applicant, rather than proceeding on the basis of the relevant norm prescribed by para 8.5(1) of Direction 99. As such, I find that an error can be discerned in the Tribunal’s reasoning.

89    The next step is to consider whether this error was material so as to amount to jurisdictional error. I consider that this error does indeed cross the threshold of materiality as it prior to the Tribunal conducting its ultimate weighing exercise: LPDT at [12] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Whilst it would be improper to speculate upon the Tribunal’s reasoning had it not ascribed a weighting to the expectations of the Australian community based on the applicant’s personal circumstances, I consider that it is not fanciful to suppose that the ultimate decision could have differed had the error not occurred: LPDT at [36] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

90    Accordingly, Ground Five of the application discloses a jurisdictional error.

Ground Six

91    Under the final ground of review, the applicant contends that the Tribunal incorrectly identified general deterrence and denunciation as part of the purpose of its decision at T [186].

92    It is not contentious between the parties that it is impermissible for a decision-maker to use the power in s 501CA(4) of the Act to impose punishment for a criminal offence: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [37] (per Flick, Griffiths and Perry JJ).

93    The applicant submits that by restating the observations of Niall JA in Muller v R [2022] VSCA 193 at T [186] of its reasons, the Tribunal erred by allowing the factors of general deterrence and denunciation to impact its final decision. In advancing this ground and submitting that the rehashing of Niall JA’s comments rises higher than a simple retelling, the applicant relies on the observations of Burley J in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 where his Honour held at [26]:

…The starting point is that because the Tribunal was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were, in fact, taken in arriving at that result. If something is not mentioned it may be inferred that it has not been considered or taken into account; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [37] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing at [1]); Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130] (Hayne J, McHugh J agreeing at [26] and Gummow J agreeing at [28]).

94    Even so, I consider that the applicant has mischaracterised the comments of Niall JA, and in advancing this ground, opted to focus on the reference to “general deterrence and denunciation” in a vacuum. Similar to Ground Five above, it is impermissible to consider certain aspects of material under review minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271−2 (per Brennan CJ, Toohey, McHugh and Gummow JJ), at 291 (per Kirby J); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [38] (per Kiefel CJ, Keane, Gordon and Steward JJ).

95    The acknowledgment of his Honour’s comments was a reflection of Australian community’s extremely low tolerance for such offending. There was nothing to suggest these comments were selected arbitrarily. The judgment of Niall JA was material before the Tribunal that it was entitled to take into account in considering the seriousness of the applicant’s conduct, and determining the weight to be given to this consideration. A fair reading of T [186] clearly demonstrates that in this paragraph, the Tribunal was stating that denunciation and general deterrence were matters that were relevant to the courts, and not the Tribunal’s ultimate weighing exercise.

96    The repetition of these comments cannot be construed as the Tribunal’s intention to further punish the applicant. While it is true that the repetition of the remarks of Niall JA is not necessary to contextualise and frame the gravity of matters under para 8.5 of Direction 99, its inclusion cannot be said to amount to any error.

97    Accordingly, Ground Six must fail.

CONCLUSION

98    The applicant has successfully established that Ground Five of review should be upheld and as such, the application for review of the Tribunal’s decision is allowed.

99    Costs should follow the event.

Associate:

Dated:    16 August 2024