Federal Court of Australia

FCSV v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 963

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the proceeding, to be assessed by a Registrar of the Court if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant is a Fijian national who, up to September 2022, was in Australia on a visa. The visa was cancelled by the first respondent (Minister) because the Parramatta Local Court had sentenced the applicant to 12 months' imprisonment for the offence of 'Carry out sexual act with another without consent - T2'. The cancellation of the visa was mandatory under s 501(3A) of the Migration Act 1958 (Cth).

2    The applicant made representations to the Minister under s 501CA(4) of the Act as to why the cancellation should have been revoked, but in July 2023 a delegate of the Minister refused to revoke it.

3    The applicant sought review in the Administrative Appeals Tribunal. He did not contend that he passed the character test for the purposes of s 501CA(4)(b)(i); rather, he contended that there was 'another reason' within the meaning of s 501CA(4)(b)(ii) why the delegate's decision should have been revoked. But on 21 September 2023, the Tribunal affirmed the delegate's decision.

4    The applicant now seeks judicial review. He contends that the Tribunal fell into jurisdictional error in its assessment of the risk that he would commit further criminal offences or engage in other serious conduct should he be returned to the Australian community. In brief, three errors are alleged:

(a)    the Tribunal failed to consider psychological evidence, specifically a medical record from 2023, that the applicant's risk of harm to others had been assessed as 'low';

(b)    the Tribunal failed to take account of the contribution that drug use made to the applicant's offending and the significance of his more recent abstinence from drugs and alcohol; and

(c)    the Tribunal had no evidentiary basis for a finding that it may be difficult for the applicant to abstain from drug use and reoffending if he were to be released into the Australian community.

5    For the following reasons, the application will be dismissed.

The relevant aspects of the Tribunal's decision

The IHMS record

6    The Tribunal recorded in its reasons that among the materials that it had specifically admitted into evidence at the hearing was the document that is the subject of first ground of review, being an International Health and Medical Services (IHMS) record dated 24 March 2023.

7    On its face, this is a record of a mental health consultation which the applicant had on that day. The identity and qualifications of the person who conducted the consultation and filled out the record are not disclosed. After describing the applicant's (unremarkable) presentation at the consultation, and summarising some things that the applicant said at the interview, the record sets out the following:

Risk Assessment/ Impression

Mental state -- Stable

TOSH/SI - Low

Harm from others - Low

Harm to others - Low

At the time of Consultation client denied any current suicidal, self-harm or thoughts to harm others.

8    I infer that 'TOSH/SI' stands for 'Thoughts of Self-harm/Suicidal Ideation'. The record then closed with some (again, unremarkable) recommendations for positive actions the applicant could take, such as 'healthy routines and lifestyle choices'.

9    To be clear, the above is my description of the IHMS record, not a description given by the Tribunal. The Tribunal only referred to the IHMS record briefly in connection with the subject of impediments facing the applicant on return to Fiji. In that regard it merely noted the assessment that the applicant's mental state was stable and that the applicant did not think he required any further counselling at that stage.

The applicant's offending and likelihood of reoffending

10    After listing the documents that it had admitted into evidence, the Tribunal set out relevant legislation and noted that, under s 499 of the Migration Act, it was required to comply with Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) in its review of the delegate's decision. Relevantly, that Direction required it to take into account, as a primary consideration, the protection of the Australian community from criminal or other serious conduct (paras 6 and 8(1)). Paragraph 8.1(2) in turn required the Tribunal, in considering that matter, to give consideration to the nature and seriousness of the applicant's conduct up to the date of the Tribunal's decision and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

11    Paragraph 8.1.1(1) of the Direction sets out specific matters to which the Tribunal was required to have regard, but the applicant takes no issue with the Tribunal's treatment of those matters so it is not necessary to set them out.

12    The Tribunal considered the applicant's criminal history. After some isolated offending in 1991 and 2000, the applicant had convictions entered for an increasingly large number of offences, from 2018 up to his incarceration in 2022. These appear to have been associated with drug use. Many of the convictions were for possession of relatively small quantities of illicit drugs, including methamphetamine and heroin. Others were for breach of community correction orders. The applicant was not in custody until 28 March 2022, when he was remanded without bail for the sexual act without consent offence.

13    The applicant pleaded guilty to that offence. The Tribunal found that it was very serious and the applicant does not dispute that. Nor does he dispute the Tribunal's findings that his offending from 2018 on was frequent with a trend of increasing seriousness, assessed by reference to both the penalties handed down and nature of the offences. The Tribunal concluded that the nature and seriousness of the applicant's conduct weighed strongly against the revocation of the cancellation decision.

14    The Tribunal then turned to an assessment of the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. As the Tribunal noted, paragraph 8.1.2(2) relevantly required the Tribunal to have regard (cumulatively with other matters) 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; 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 reoffending; 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).

15    In terms of the matter raised under paragraph 8.1.2(2)(a), the Tribunal found that the harm that could result to members of the community if the applicant were to commit another sexual offence was potentially very serious. Similar conclusions were reached about violent offending. For drug offences, the nature of the harm caused would be varied, given that the applicant's drug possession appeared to have been for personal use. Again, the applicant does not dispute these findings.

16    The Tribunal then turned to the consideration arising under sub-paragraph (b) of paragraph 8.1.2(2), namely the likelihood of the applicant engaging in further criminal or other serious conduct. It is this part of the Tribunal's reasoning that is the subject of the three grounds of review.

17    The Tribunal found there was very little likelihood of a reoccurrence of any violent offending by the applicant, as his conviction for assault was from 2000 and he had not committed any violent offences since then.

18    As for other kinds of offending, the Tribunal gave the following overview (para 57):

The Applicant is a 56-year-old man who has committed numerous offences, with his criminal history showing an increase in seriousness. The Applicant initially received fines but was not deterred by them and continued to commit further drug possession offences and to breach community corrections orders. Despite being given several opportunities for rehabilitation and supervision in the community he did not adequately engage with those opportunities and continued to offend. Overall, this history suggests that there is a likelihood of future reoffending.

19    The Tribunal then made the following observations, which are relevant to the second and third grounds of review (paras 58-60):

The Applicant had an addiction to 'crystal meth' which contributed to his offending. At the hearing he described using cannabis from when he was approximately 16 or 17 years old, and that he started using 'crystal meth' in approximately 2015 which was the cause of his relationship with his girlfriend at the time, B, breaking down. He also used heroin but said it was not regular when he was asked at the hearing about his heroin possession offence. After the relationship breakdown, the Applicant's drug use increased and between 2019 to 2021 he was using 'crystal meth' every day. After his relationship with B ended, he experienced housing instability and would stay at the houses of different drug using friends. This, according to the Applicant, continued up until he went to prison. The Applicant's evidence was that he had not used any drugs since before he went to prison.

The Applicant was put on a Court ordered drug rehabilitation program in approximately September 2021 to December 2021 called the MERIT program, which included weekly drug and alcohol counselling. Despite positive completion reports (SM5), which appear to be based on the Applicant's self-reporting about his drug use, the Applicant admitted at the hearing that he cut down his drug use when he was first on the program but that his drug use increased towards the end of it. One of those reports, which was dated 22 December 2021, said the Applicant self-reported previous drug and alcohol counselling in 2020 with the Drug Alcohol Multicultural Education Centre (SM5/37).

At the hearing, the Applicant stated that he would be willing to engage in drug rehabilitation in the community, however, there is no evidence he has made any enquiries or plans to do so. His history of significant drug use and failure to engage in rehabilitation in the community in the past, including increasing his drug use despite engaging in the structured, court-ordered MERIT program, is concerning. Given this history and lack of rehabilitation in the community, it may be difficult for the Applicant to abstain from drug use and reoffending if he is released into the Australian community.

20    The Tribunal then turned to the applicant's work history and plans to look for work if he were released, and noted that he had a TAFE qualification that may help him obtain work. The Tribunal also referred to recreational activities (playing music and volunteering at church) that may reduce the likelihood of reoffending.

21    The Tribunal turned to consider the applicant's social and family support in Australia and found that he had few connections that would offer him emotional or other support if he were able to stay in the Australian community. Generally, the Tribunal did not find that this aspect of the applicant's life was likely to be protective against reoffending.

22    The Tribunal also noted that if the applicant were to be released into community, parole conditions would not be protective because his parole period had expired.

23    The Tribunal then described evidence about the applicant's participation in rehabilitation programs while in immigration detention and while in prison, as well as an anger management course and bible study. Of all this, the Tribunal observed (paras 69-70):

It is positive that the Applicant has engaged in drug rehabilitation programs, which may provide him with strategies to abstain from drug use in the future. However, his drug rehabilitation programs (Smart Recovery Program and 'Drug and Alcohol Abuse 101') were not intensive programs and he is likely to need structured support, such as residential rehabilitation, in the community on an ongoing basis. This is especially given his lack of compliance with court ordered rehabilitation programs in the past and his increased drug use towards the end of the MERIT program. Additionally, there are no reports from treatment facilitators about any gains that he may have made from completing the programs.

It is also positive that the Applicant has completed a prison induction and anger management course. However, the Applicant's main areas of concern are in my view, his drug use and his 'Carry out sexual act with another without consent - T2' offence. There is no evidence that the Applicant has engaged in any rehabilitation programs or counselling for this sexual offence. This is of concern given the Applicant's lack of insight concerning this offence, which I will now discuss.

24    The Tribunal went on to find that the applicant's evidence about the sexual act without consent offence 'was inconsistent and displayed a lack of victim empathy and a lack of understanding that he had done anything wrong' (para 71).

25    The Tribunal then described a 'breach report' about the applicant, as follows (para 74):

A breach report dated 21 July 2021 by a Community Corrections officer (SM1/2) stated that the Applicant, 'was assessed by Community Corrections as a low risk offender'. It is unclear how this assessment was reached. For example, there is no reference to a formal assessment tool being administered. Also, after that assessment, the Applicant had further Court appearances for 'Possess prohibited drug' offences and breaches of community corrections [orders] on 20 January 2022, 29 March 2022, and he committed the 'Carry out sexual act with another without consent - T2' offence on 19 September 2022. This calls into question the accuracy of the assessment that the Applicant was 'a low risk offender'. Indeed, based on the evidence before me, I find that the Applicant [has] at least a moderate risk of reoffending with further drug offences or sexual offences.

26    The Tribunal then summarised and concluded its consideration of the likelihood of the applicant reoffending as follows:

75.    In summary, the following factors are not protective or suggest some likelihood of reoffending:

(a)    After being assessed as 'a low risk offender', the Applicant committed further drug possession offences, breaches of community orders and a serious sexual offence. This suggests that he is higher than a 'low risk'. I would conservatively place his risk as being 'moderate' at the least.

(b)    The Applicant showed a lack of insight into his sexual offending. He tried to minimise his offending and to present himself in a more favourable light. At the hearing, he did not appear to think that that he had done anything wrong. He sought to present the victim as having consented to engage in sex with him through her movements and conduct despite her emphatically stating that she was not interested in engaging in any sexual activity with him. This raises doubts about his empathy, insight and remorse, which in turn, suggests a likelihood of reoffending.

(c)    It may be difficult for the Applicant to abstain from drug use in the community due to his history of methamphetamine ('crystal meth') use, culminating in daily use of the drug. He has undertaken some voluntary treatment, which was not intensive and for which there are no reports from facilitators evidencing any treatment gains.

(d)    Although the Applicant has stated he is willing to undertake rehabilitation in the community, he has no plans in place, nor is there any evidence he has made any enquiries. He will also not have the benefit of parole supervision or any community-based order to assist his rehabilitation and reintegration into the community.

(e)    The Applicant has limited social supports in the community. It is unclear whether B [his friend and former girlfriend] and T [his friend and former bandmate] want to provide him with continued social support, or if the Applicant will contact them. Even if he resumes friendships with them, they do not appear to have a complete picture of the Applicant's offending history which raises doubts about how supportive they could be.

(f)    The Applicant has committed numerous offences and has not been deterred from repeat offending despite being given the opportunity of community-based orders and opportunities for rehabilitation in the community. Indeed, he increased his drug use towards the end of the MERIT program.

76.    The following factors are protective and may reduce the likelihood of the Applicant reoffending:

(a)    The Applicant did not offend for approximately nine years between 1991 and 2000 and 18 years between 2000 and 2018. This shows that he is capable of living in the community without offending.

(b)    Although not intensive, the Applicant has engaged in some drug rehabilitation in prison and immigration detention, as well as other voluntary programs (such as anger management). He has expressed a willingness to undertake rehabilitation in the community, although he has no plans in place and there is no evidence of any enquiries being made.

(c)    He has a positive outlook due to his bible studies, which helped him to quit smoking. This perspective could assist him to remain abstinent from drugs if he was released into the community.

(d)    The Applicant wants to engage in work, go to Church and play music in a band. These are positive ways for the Applicant to spend his time and may assist to reduce the likelihood of his reoffending.

(e)    He has had a period of abstinence from drug use in prison and immigration detention which may assist him to stay drug and alcohol free in the community, which may in turn reduce the likelihood of his reoffending.

(f)    The deterrent effect of the time the Applicant has spent in prison and immigration detention, and his concerns about returning to Fiji after living in Australia for the last 34 years.

77.    Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, as I stated above, I find that the Applicant is likely to be a moderate likelihood of reoffending.

27    After considering the range of harms that could result if the applicant were to reoffend, the Tribunal concluded that the risk to the Australian community should he commit further offences weighed strongly against the revocation of the cancellation of his visa.

Other considerations, and the Tribunal's final conclusion

28    The Tribunal also considered the strength, nature and duration of the applicant's ties to Australia, finding that this weighed moderately in favour of revocation. There were no minor children whose interests were relevant. The Tribunal found that the expectations of the Australian community weighed strongly against revocation. Other considerations were found to be neutral or irrelevant or only to carry slight weight.

29    The Tribunal concluded that the strong weight to be given to the protection of the Australian community and to the expectations of that community outweighed the considerations that weighed in favour of revocation of the cancellation of the applicant's visa. Accordingly, it affirmed the delegate's decision.

The grounds of review

30    The three grounds of review are:

1.    The Tribunal erred in concluding that the Applicant's likelihood of engaging in further criminal or other serious conduct was moderate, in that it failed to consider evidence from an independent psychologist in March 2023 that the Applicant's risk of harm to others had been assessed as 'low'.

2.    The Tribunal failed to take into account relevant facts or materials in considering the manner of the Applicant's likelihood of re-offending, in that:

a.    on each occasion from 2000, his offending was undertaken in a context involving the use of prohibited drugs or alcohol; and

b.    the Applicant has abstained from using prohibited drugs, alcohol and cigarettes during his period of detention, and has actively participated in courses available to him in detention to assist him in continuing to abstain from using prohibited drugs, alcohol and cigarettes.

3.    The Tribunal erred in concluding that the Applicant's history and lack of rehabilitation in the community may make it difficult for the applicant to abstain from drug use and reoffending if he is released into the Australian community when there was no evidence before the Tribunal for it to draw that conclusion, and that conclusion was material to its decision.

31    I will now consider each of these. To some extent, the applicant's submissions dealt with grounds 2 and 3 together, and I will do the same.

Ground 1 - the IHMS record

32    The evidence to which ground 1 refers is the IHMS record described at [7]-[10] above. This is said to be from an independent psychologist. However, in oral submissions counsel for the applicant accepted that there was no information before the Tribunal about the qualifications of whoever conducted the consultation with the applicant, or completed the record. Counsel accepted that all that can be said is that it was a mental health consultation which was undertaken in immigration detention.

33    The applicant's submission about this material is simple: since the risk of him harming others was squarely in issue before the Tribunal, the Tribunal erred, because it did not refer to the IHMS record in connection with the protection of the Australian community, even though the record said that the risk of harm to others was low. The Tribunal noted at the outset of its reasons that it had received the record into evidence, and referred to it one other time only, in connection with the applicant's mental health and impediments on return to Fiji. The applicant relies on Manebona v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 402 at [70] and at the hearing his counsel accepted that the ground alleged was a failure to consider an important piece of evidence, so the nature of the alleged jurisdictional error is that the Tribunal overlooked relevant evidentiary material: see Manebona at [45].

34    The answer to the submission is simple too, however: it was open to the Tribunal to determine that the IHMS record was not relevant. It was a piece of evidence indicating that, at the time that the applicant was in immigration detention, someone had assessed him as being at low risk of harming himself and other people.

35    Arguably, the Tribunal could have taken that into account in determining the risk that the applicant would harm other people if he were to be released into the community. But it said nothing about the nature of the harm that was assessed and whether, for example, it might result in a repetition of the kind of offences of which the applicant had been convicted. This included the sexual offence, numerous offences that seemed to involve possession of drugs for personal use, a minor trespass offence, and breaches of community correction orders. The connection between those offences and the unspecified harm to others that might occur in immigration detention is not obvious.

36    There was one offence of violence, to which the IHMS record could be relevant, but the Tribunal found elsewhere that there was very little likelihood of the applicant engaging in reoffending involving violence, since the offence had occurred in 2000 (see [18] above). So it does not appear that the Tribunal put any weight on that historical offence.

37    In any event, the IHMS record said little about the risk the applicant might pose in the very different conditions of release into the community. And since the qualifications of its author were unknown, the weight to be put on it was difficult to determine.

38    The Tribunal was not obliged to refer to every piece of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. The absence of an express reference to evidence does not necessarily mean that the evidence was not considered: ETA067 v The Republic of Nauru [2018] HCA 46 at [13]. In light of the characteristics of the IHMS record that have just been described, the Tribunal's omission to refer to it in connection with the likelihood of reoffending does not lead to any inference that it overlooked that document.

39    Counsel for the applicant submitted that an inference of that kind is supported by the fact that the Tribunal devoted a whole paragraph of its reasons to assessing something called a 'breach report', prepared before the applicant was incarcerated for the sexual offence, where he was assessed by a Community Corrections officer as a low risk offender (para 74 - see [26] above and see also para 75(a) at [27] above). The submission appeared to be that the IHMS record was a document of the same kind, or possibly a document of similar importance, so it can be inferred from the fact that the Tribunal referred to the breach report, but not the IHMS record, that it overlooked the latter.

40    But the breach report at least referred to the applicant in connection with risk associated with his offending which could, by inference, mean the risk that he would reoffend. So the Tribunal's choice to consider it in connection with the likelihood of reoffending is readily explicable. As set out above, the connection between the IHMS record and the risk of the applicant reoffending was unclear. I do not consider that paragraph 74 significantly strengthens the inference the applicant invites the Court to draw.

41    The better inference is that the Tribunal did not refer to the IHMS record in connection with the risk of reoffending because it considered it not to be relevant, or of no weight. Ground 1 is not upheld.

Grounds 2 and 3 - abstinence from drugs

The applicant's submissions

42    Both grounds 2 and 3 concern the Tribunal's findings at paragraphs 60 and 75(c) (see [20] and [27] above) that, in the words used in paragraph 60, 'it may be difficult for the Applicant to abstain from drug use and reoffending if he is released into the Australian community'. The applicant's written submissions criticised the findings largely without distinguishing between the two grounds.

43    According to the applicant, in making the findings, the Tribunal failed to address the context surrounding his participation in the MERIT program in late 2021, namely that at the time of his participation he was addicted to prohibited drugs including crystal methamphetamine and, he told the Tribunal, he did not have a fixed address. The Tribunal noted (and it can hardly be doubted) that the applicant's use of prohibited drugs and/or alcohol was a contributing factor to his offending. So, he submits, it stands to reason that if he abstains from using prohibited drugs and alcohol, he is significantly less likely to reoffend. Yet, he submits, that is not reflected in the Tribunal's decision.

44    The applicant submits further that the Tribunal's finding did not properly address evidence before the Tribunal (apparently also given orally by the applicant) that he had abstained from prohibited drugs for at least 18 months. While the applicant acknowledges that the Tribunal did (at para 76(e)) refer to his 'period of abstinence from drug use in prison and immigration detention', the applicant submits that the Tribunal did not consider the abstinence in the context of the role that his use of prohibited drugs and alcohol had played in his historical offending. (The applicant's submissions also refer to his ongoing abstinence after the Tribunal's decision, but developments that postdate that decision cannot support any finding of jurisdictional error on the Tribunal's part: see e.g. Huda v Minister for Immigration and Citizenship [2009] FCA 1329 at [27] (Kenny J).)

45    As for the findings about the probability of the applicant's ongoing abstinence from drugs and alcohol, he submits that there was no evidence or other material before the Tribunal to the effect that he would struggle to abstain if released into the community. To the contrary, there was evidence of his engagement in rehabilitation, anger management courses and faith-based support while in detention. This included ongoing participation in the Smart Recovery Program (see [24] above - this is said to have continued after the Tribunal hearing but, again, that cannot support a finding that the Tribunal fell into jurisdictional error). So, the applicant submits, in concluding that it may be difficult for him to abstain from drug use and reoffending, the Tribunal relied on supposition rather than evidence.

Ground 2

46    The applicant's written submissions did not characterise the error he alleges under ground 2 as falling into any of the recognised categories of jurisdictional error, and in oral submissions his counsel said it could not be slotted neatly into any such category. It is true that jurisdictional error can take many different forms and the categories are not closed: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [3]. However, it is still necessary, at least in the present context, to show that there was a 'breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute': LPDT at [2].

47    Counsel for the applicant identified the error as being that, having referred to his addiction to drugs and his unsuccessful participation in court-ordered rehabilitation programs while in the community, the Tribunal did not then distinguish his circumstances in 2021, where he increased his drug use towards the end of the MERIT program, from his circumstances in 2023 when he was before the Tribunal. The difference, according to the applicant, was that when he unsuccessfully engaged in the MERIT program in 2021, he was severely addicted to crystal methamphetamine, but when he was before the Tribunal in 2023, he had been abstaining from drugs for 18 months while incarcerated.

48    This might be thought to be an allegation of illogicality, but counsel for the applicant disavowed that. In any event, a characterisation of something as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]. It is doubtful that an error in fact finding at this level of detail could be so characterised.

49    Counsel did accept that it would be possible to view the error as one of failure to consider a point that arose clearly on the materials before the Tribunal: see, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [60]. But as has already been pointed out, the Tribunal was not required to refer to every piece of evidence before it. In addition, it is possible for a point advanced by an applicant to be subsumed in a wider finding: see Applicant WAEE at [46]-[47].

50    In the present case, the applicant submitted that he raised the point in his oral evidence before the Tribunal. He contended in submissions that he told the Tribunal that:

(a)    at the time of his participation in the MERIT program, he was addicted to prohibited drugs including crystal methamphetamine and did not have a fixed address;

(b)    his use of prohibited drugs and alcohol contributed to each offence of which he was convicted; and

(c)    he had not used prohibited drugs for a period of at least 18 months.

51    The Minister did not dispute the accuracy of these descriptions of what the applicant told the Tribunal. An audio recording of the hearing was in evidence, because the applicant could not afford to have it transcribed, but counsel for both parties submitted I did not need to listen to the recording, and I have not done so.

52    Counsel for the applicant accepted that the Tribunal had regard to the above matters in its reasons; she said that his essential complaint was that the Tribunal did not consider them to a sufficient extent. That being so, the ground runs against current authority on complaints of that kind, as crystallised by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582. As Mortimer, Colvin and O'Sullivan JJ explained in ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8]:

… when it was said in Plaintiff M1/2021 that 'a decision-maker must read, identify, understand and evaluate the representations' (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

53    Any suggestion that the Tribunal overlooked or misunderstood the point the applicant now relies on would not be sustainable. The aspects of the Tribunal's reasons summarised at [20] and [24] above show that it was aware that the applicant's drug addiction had contributed to his offending. It referred to his drug use as one of his 'main areas of concern'. It described how he had expressed willingness to engage in drug rehabilitation in the community. The premise behind this was that being in the community was different to being in detention, so the Tribunal was aware of the applicant's abstinence in the latter situation. It was actively considering whether he would continue to abstain in the community. In the course of doing so, the Tribunal considered the significance of the applicant's engagement in a rehabilitation program. It also expressly referred to his period of abstinence from drug use in prison as a protective factor that might reduce his level of offending: see para 76(e) at [27] above.

54    I am comfortably satisfied that the Tribunal brought the applicant's recent history of abstinence to bear in considering, among other things, the likelihood of successful rehabilitation in the community. Quite simply, the Tribunal did not consider that it and the other factors it referred to were protective enough. That was entirely within the province of the Tribunal to decide.

55    It is true that Plaintiff M1/2021 is about what was required of the Minister in dealing with representations made by a non-citizen in support of 'another reason' to revoke the cancellation of a visa under s 501CA(4) of the Migration Act. It does not concern what is required to comply with a direction under s 499 of the Migration Act. So it may be that the degree or quality of consideration of a matter by the Tribunal can still fall short, and result in jurisdictional error, if it means that the Tribunal has not complied with a requirement in Direction 99: see Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55].

56    But if that was the applicant's case here, his submissions did not articulate how the Tribunal failed to comply with Direction 99. And it is difficult to see how it might have so failed. The Direction did not make the context of any drug addiction, during which a non-citizen has engaged unsuccessfully in a rehabilitation programme, a mandatory relevant consideration: cf. Jabari at [55]. The relevant requirement in paragraph 8.1(2)(b) was to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of him reoffending, and evidence of rehabilitation achieved by the time of the decision: see [15] above. The summary of the Tribunal's approach to the question given above shows that is what it did.

57    In the course of doing so, the Tribunal did have regard to the contribution that drug addiction made to the applicant's offending and to his abstinence in prison, and it did take into account the rehabilitation programs in which he had engaged. To the extent that the applicant now presses the more specific point that his lack of success in rehabilitation was caused by his drug addiction, and that his more recent abstinence meant that future rehabilitation would have better prospects, that was subsumed in the findings at sub-paragraphs 75(c), 75(d), 76(b) and 76(e) (see [27] above). The Tribunal simply declined to reach the conclusion the applicant now says it should have reached. Since the applicant appropriately disavows any complaint of legal unreasonableness, I cannot see how this can be a jurisdictional error.

58    Counsel for the applicant also sought to frame her submissions in terms that the Tribunal emphasised certain aspects of the evidence and downplayed others. But this, with respect, did make the ground sound very much like impermissible merits review. The weight that the Tribunal chose to put on any piece of evidence - for example, evidence that the applicant was in the grip of drug addiction at the time he took the MERIT program - was a matter for it: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ).

59    Ground 2 is not upheld.

Ground 3

60    In oral submissions, counsel for the applicant characterised ground 3 as a contention that there was no evidence for the Tribunal's conclusion that it may be difficult for the applicant to abstain from drug use and reoffending if he is released into the Australian community. It is convenient to repeat the summary of the principles governing jurisdictional error on that basis that was given in GAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 867 at [52]:

It is well established that a mere insufficiency of evidence or other material will not sustain a ground of that kind; there must be no evidence or other material to justify the finding made: Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [118]. Another way of putting it is that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, and beyond that is not concerned with the sufficiency or quality, including cogency of the evidence: see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48] (Mortimer J, Moshinsky J agreeing). It is also important to appreciate that the ground requires a comparison between the material available to the decision maker and the conclusions that the decision maker has drawn: Splendido ibid; L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA, McColl and Whealy JJA agreeing).

61    This ground 'has traditionally meant "not a skerrick of evidence"': Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17] (footnote removed).

62    It is also relevant to note the observations of the High Court in Viane at [18], to the effect that there is nothing in the statutory language of s 501CA(4) of the Migration Act that prohibits the Minister from using personal or specialised or commonly accepted knowledge for the purpose of considering representations made by an applicant:

there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge.

63    As to that last point, the Full Court has found that this applies in the Tribunal context as well: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568 at [60] (Markovic, Thawley and Cheeseman JJ). In this case, counsel for the applicant properly accepted that the Tribunal was constituted by an experienced member who has determined a large number of applications where the likelihood that a person will relapse into drug use when released into the community is in issue.

64    The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c). Where it gives written reasons for its decision, those reasons are required to include 'its findings on material questions of fact and a reference to the evidence or other material on which those findings were based': Administrative Appeals Tribunal Act, s 43(2B) (noting that under s 25D of the Acts Interpretation Act 1901 (Cth), the Minister in Viane had a similar obligation to give reasons - see Viane at [16]).

65    Under ground 3, counsel for the applicant nevertheless appeared to be contending that the Tribunal's finding here that the applicant may have difficulty in abstaining from drugs when released into the community was a finding of the kind described in Viane at [21] (footnote removed):

It would, one would hope, be a rare case where a fact is asserted in support of a reasoned outcome under s 501CA of the Act which has no basis for its existence. However, there have been exceptions in extreme and rare cases where the Minister has made particular or personal findings about an applicant, which could not have been the subject of any pre-existing personal or specialised knowledge (or common knowledge), and were not otherwise supported in any way. Examples of this have included findings made in the absence of any evidence or supporting material about the danger an applicant might pose in the future to the Australian community, and about the type of hardship an applicant might personally suffer if deported.

66    The applicant submitted that there was, for example, no report before the Tribunal from a psychologist or other expert indicating that an absence of a record of rehabilitation in the community indicates a propensity to relapse.

67    I do not accept these contentions. Not every factual finding must have as its immediate source some piece of primary material, in the form of evidence or other information. Obviously, the Tribunal was free to make factual findings that were the result of inferences based on primary material of that kind, provided that it did so rationally. And, as stated above, it could also rely on personal knowledge and common knowledge, and it did not necessarily need to say when it had relied on knowledge of that kind.

68    The factual finding impugned here is the one found in paragraph 60 of the Tribunal's reasons, as set out at [20] above. It is the finding that it may be difficult for the applicant to abstain from drug use and reoffending if he is released into the Australian community. The basis of that finding is set out in the preceding sentences of that paragraph, as well as the more specific findings in paragraph 59 and before. Its basis was:

(a)    there was no evidence that the applicant had made any inquiries or plans to engage in drug rehabilitation in the community, readily supporting the implication that he had made no such inquiries or plans;

(b)    his history of significant drug use;

(c)    his failure to engage in rehabilitation in the community in the past; and

(d)    his history of increasing drug use despite engaging in a court ordered rehabilitation program.

69    The Tribunal thus inferred that someone who has engaged in increasing drug use in the community, and who has no record of successful rehabilitation while in the community, may relapse into drug use if they return to the community. That is logically supported by the primary factual material on which it is based. The applicant characterises ground 3 as a 'no evidence' ground, but the evidence was ample.

70    To the extent that the applicant relies on his 18 months of abstinence in connection with ground 3, that is simply a factual matter which, he says, should have weighed against the inference just described. Despite the existence of that factual matter, the other factual matters on which the Tribunal did rely provided a sufficiently probative foundation for the inference. By enlisting his 18 months of abstinence, the applicant is simply disagreeing with the Tribunal's inference and inviting the Court to review its merits.

71    The same may be said of the applicant's reliance on his engagement in rehabilitation and anger management courses and faith-based support while in detention. To rely on that in this context is simply to point to evidence that might have led the Tribunal to a different conclusion. But provided it acted logically and reasonably, the evidence the Tribunal chose to refer to in its reasons, and the weight it put on that evidence, were a matter for it: Applicant WAEE at [46]; Abebe at [197].

72    If there is any matter, not stated explicitly in the Tribunal's reasons, that was essential to the inference, it was simply this: a person's past behaviour in certain conditions can provide an indication of his or her future behaviour in similar conditions. That is common knowledge. There was no need for the Tribunal to articulate such a commonly held belief, and the applicant makes no complaint that the Tribunal did not comply with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act. Nor was there any need for the Tribunal to rely on expert opinion in order to make the inference.

73    Ground 3 is not upheld.

Conclusion

74    The application is dismissed, with costs.

Associate:

Dated:    23 August 2024