Failure to consider relevant facts or materials going to the character test reason for revocation
13 By ground one, Mr Adefarakan contends that the Tribunal failed to complete the exercise of its jurisdiction by ignoring, overlooking or misunderstanding relevant facts or materials before it, relying upon Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27]. Specifically, he relies upon the fact that the Tribunal, in considering the risk of harassment, molestation, stalking or intimidation that he posed, was obliged by [8.1.2(2)(b)(ii)] of Ministerial Direction no. 99 (Direction 99) to consider rehabilitation achieved by him by the time of the revocation decision, giving particular weight to the extent to which this took place in the community. He contends that the Tribunal failed to do so as it did not consider that, during his time in the community between 29 December 2022 and 10 March 2023, and as raised in his SFIC at [13], [41], [42] and [47]:
(a) he did not re-offend or "harass, molest, intimidate or stalk";
(b) he continued attendance upon a psychologist four times, in particular during the period in which his visa cancellation had been rendered invalid by the Pearson decision, such that this attendance was solely for rehabilitation;
(c) he was helped with rehabilitation by the Wayside Chapel in Kings Cross, Sydney; and
(d) he voluntarily surrendered himself to NSW police to be taken back into immigration detention in a law-abiding manner (at the request of the Australian Border Force).
14 Mr Adefarakan relies upon the Tribunal's reasons at AAT[54] and [58] to demonstrate that these rehabilitation considerations were overlooked, especially by reason of the references to his rehabilitation efforts not being tested:
[54] With the exception of his counselling sessions with his psychologist at the beginning of 2023, Mr Adefarakan's rehabilitation efforts have not been tested either in a relationship or in the community.
[58] Overall, the risk management or mitigation factors presented by his rehabilitation efforts and his personal relationships are either untested or have proved insufficient in the past to prevent the risk that he will harass, molest, intimidate or stalk another person in Australia.
15 The problem Mr Adefarakan identifies is that AAT[54] and [58], read fairly and literally, and to the extent possible, beneficially (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), clearly indicate that the Tribunal formed the view that the only rehabilitation efforts he made that were able to be tested in the community was attending counselling sessions with a psychologist. Mr Adefarakan contends that the Tribunal had no regard to the three other aspects of his conduct that he relied upon as going to rehabilitation being able to be tested in the community, summarised above at [13].
16 Of those four aspects relied upon as to rehabilitation, the only one of present significance is that at [13(c)] above, namely being helped with rehabilitation by the Wayside Chapel in Kings Cross. To succeed on this ground, Mr Adefarakan must succeed on this aspect, as he is unlikely to succeed on the others advanced. That is because:
(a) in relation to the point summarised at [13(a)] above, a short period of non-reoffending of itself begs the question of the risk of reoffending, rather than answering it, and does not of itself go directly to efforts at rehabilitation in the community;
(b) in relation to the point summarised at [13(b)] above, while he ultimately accepted that the fact of seeing a psychologist in the community was expressly taken into account, the context relied upon of seeing that psychologist after his visa was reinstated and before he was returned to immigration detention, so as not to be merely a reactive response to visa cancellation as the Minister contended, was not, as he contended, overlooked, but expressly taken into account at AAT[40(g)];
(c) in relation to the point summarised at [13(d)] above, the evidence before the Tribunal indicated no more than that he complied with a requirement to surrender himself back into immigration detention, which was not conduct directed to rehabilitation in the community per se.
17 The evidence going to the point summarised at [13(a)] above can best be understood by reproducing a letter that was before the Tribunal dated 20 February 2023 from the Wayside Chapel's Pathways Coordinator - Specialised Services, Ms Georjia Newhouse:
Re: Letter of Support
Name: Adebayo Ademola [Adef]arakan D.O.B: [redacted]
To whom it may concern,
I am writing in my capacity as Pathways Coordinator - Specialised Services at The Wayside Chapel in support of Adebayo Ademola [Adef]arakan, preferred name 'Prince'.
The Wayside Chapel has been providing social and community services to members of the Kings Cross and broader Sydney community since 1964. The Wayside Chapel's Community Services Centre provides holistic care, love and support to those at risk or experiencing homelessness and social isolation. It also provides information, crisis counselling, referrals and advocacy to those needing further support with presenting issues including homelessness, mental health and alcohol and other drugs. The Pathways Program supports people across all programs at Wayside that require the support to get back on their feet by supporting [them] to find meaningful vocation to enrich their life.
I have been working alongside Prince in the Pathways Program for the past few months. Prince was referred to the program to receive support in finding meaningful vocation to enrich his life. Within this time, Prince has demonstrated professionalism, reliability and respect in all the scheduled employment support meetings. Prince is a motivated individual, who is determined to establish himself as a professional and develop a sustainable career, which he has communicated proudly is to provide for his daughter and support her wellbeing. Prince has demonstrated commitment to his own wellbeing and has been actively engaged on a weekly basis with a psychologist, providing him with holistic support for his mental health and general wellbeing.
Within the time that I have known Prince, he has consistently demonstrated respect, determination, motivation and resilience in wanting to rehabilitate and establish himself as the best person he can be, for his daughter, his community and for himself. I look forward to continuing to support Prince whilst he requires employment support and excited to be kept up to date on the incredible progress he is making in his rehabilitation.
18 The above letter, if considered by the Tribunal, could readily have been understood as describing not just efforts at rehabilitation in the community, but also as evidence of those efforts having been tested and found to have been successful. If considered in that way by the Tribunal, the letter could have contradicted the conclusions reached at AAT[54] and [58] as to an absence of testing of Mr Adefarakan's efforts of rehabilitation in the community. Yet not only is the letter not referred to, but nowhere in the Tribunal's reasons is the Wayside Chapel mentioned at all. That is despite reference being made to it in the delegate's reasons for non-revocation at [60] and Mr Adefarakan's SFIC at [42], the latter of which states:
Upon release from Detention on the 29 December 202[2] the Applicant sought the assistance of the Wayside Chapel in Kings Cross. A letter of support dated 20 February 2023 is provided at [GD156]. Ms Newhouse writes:
'I have been working alongside Prince in the Pathways Program for the past few months. Prince was referred to the program to receive support in finding meaning[ful] vocation to enrich his life. Within this time, Prince has demonstrated professionalism, reliability, and respect in all the scheduled employment support meetings. Prince is a motivated individual who has determined to establish himself as a professional and develop a sustainable carer, which he has communicated proudly is to provide for his daughter and support her well-being.'
'Prince has demonstrated commitment to his own wellbeing and has been actively engaged on a weekly basis with psychologist'.
19 It may be that the Tribunal was led astray by an incompleteness in the Minister's SFIC at [36], which contended that there was insufficient evidence of meaningful rehabilitation, referring to aspects of what had taken place, but omitting any reference to the Wayside Chapel letter. That paragraph also incorrectly, or at least inaccurately, characterised all such efforts at rehabilitation by Mr Adefarakan as reactive and in response to his visa cancellation. At least some of those efforts were made in the period when his visa had been reinstated as a consequence of Pearson and he had been released. This included the period before he was informed of the legislation to reverse the effect of Pearson and before he was told he had to surrender himself to resume immigration detention.
20 I am satisfied that the Tribunal overlooked probative material expressly relied upon by Mr Adefarakan on the topic of rehabilitation efforts in the community, going directly to the character test for the purposes of the revocation of a mandatory visa cancellation, as required to be considered by [8.1.2(2)(b)(ii)] of Direction 99. Counsel for the Minister very properly conceded that if I reached this conclusion, there was no basis for concluding this was not a material error, and would therefore be a jurisdictional error. It follows that the first ground of review succeeds, and the Tribunal's decision must be set aside on that basis alone.