Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-04-15|Before: Ms J, White J

The applicant's submissions 35 The applicant's written submissions focused on the Tribunal's statement in [93] that it accepted Ms Ferrari's assessment that he represented a low risk of recidivism "somewhere between 13% and 30%". He contended that this was a finding made without evidence as Ms Ferrari had not expressed that opinion, that she had in fact thought that the statistical risk was less, and that she had referred to matters personal to him which had meant that the risk was much less. He also submitted that the Tribunal had overlooked important matters: first, that the US study was based on re-arrest rates and not the lower conviction rates (6.7%) and, secondly, that the US study had not disaggregated the recidivism percentages by reference to factors such as race, education, criminal history, or length of prison sentence. The effect, the applicant submitted, was that "the paper was not properly considered because it did not support a conclusion that [his] arrest rate matched the conditions in the report". This was a submission that the Tribunal had misunderstood Ms Ferrari's evidence. 36 In addition, I understood the applicant's submission (viewed expansively) to be, in part, a submission that the Tribunal had determined his risk of reoffending by reference to the statistical studies rather than by consideration of matters personal to him. This was suggestive of jurisdictional error because, as I raised with counsel for the Minister during her submissions, the statistical risk of reoffending of persons in the cohort of which the applicant is part, is not the same as the risk of the applicant reoffending, and it was the latter risk which cl 13.1.2(1)(b) in Direction No 79 required to be considered. 37 The applicant's submissions did not raise any complaint of irrationality or illogicality of the kind discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131]. In this respect, I note again that the applicant had had legal assistance in the drafting of the grounds in the Notice of Appeal and in the preparation of his written submissions.

The Minister's submissions 38 Counsel for the Minister submitted that the Tribunal had been correct in saying that Ms Ferrari had expressed the opinion that the applicant represented "a 'low' risk of recidivism somewhere between 13% and 30%". She referred to Ms Ferrari's answer to Q9. Counsel also submitted that the Tribunal had not relied on a statistical risk rating alone in concluding that there was "a low but real risk" of the applicant reoffending. She referred in this respect to the Tribunal's consideration of the nature of the applicant's offending, his previous involvement in the criminal justice system in Tasmania, the absence of evidence from Ms Ferrari about ongoing treatment for the applicant, and to the risk factors which continue. She submitted that, while the Tribunal's view that Ms Ferrari had opined that the statistical risk was between 13% and 30% had had some bearing on its assessment that the risk of the applicant reoffending was "low but real", it was but one of several matters on which the Tribunal had relied. The Tribunal's regard to the other matters indicated that it had made the assessment by reference to factors personal to the applicant. 39 Finally, counsel noted that counsel appearing for the applicant before the Tribunal had not taken up the opportunity to make submissions to the Tribunal concerning the studies to which Ms Ferrari had referred in her evidence.

Consideration of Ground 2 40 I consider, with respect, that the Tribunal was in error in imputing to Ms Ferrari the opinion that the applicant represented "a 'low' risk of recidivism somewhere between 13% and 30%". It is the case that Ms Ferrari had affirmed the correctness of the synopsis given by the Tribunal in Q9, but that synopsis concerned "someone in [the applicant's] circumstances", and not the applicant, as an individual. That is to say, it was a synopsis addressed to the statistical risk of a person in the cohort of persons in the applicant's circumstances reoffending. The same may be said in respect of Ms Ferrari's responses to Q7 and Q8. 41 Further, the whole context of Ms Ferrari's evidence is inconsistent with her having expressed any opinion, in percentage terms, about the risk of the applicant, as an individual, reoffending. When asked to express the risk of the applicant reoffending in percentage terms, Ms Ferrari responded by saying that she did not "do percentages". She had also said that she could not answer the related question of how close the chance of the applicant reoffending was to zero. She then said that the risk of reoffending declines with age and referred to statistical studies which evidenced that that was so. 42 The Tribunal appears not to have understood that that was the purpose of Ms Ferrari's reference to the studies and to have then engaged Ms Ferrari in an attempt to quantify in statistical terms the applicant's risk of reoffending. Ms Ferrari did give a statistical range of 13%-30% but that was directed to a person who had offended between the ages of 58 and 63 - see Q4 and its answer. It is evident that, in giving that range, Ms Ferrari was doing a simple extrapolation from a study which indicated that at age 40 the statistical risk of recidivism was 30% and from the second study which indicated that at age 65 it was 13%. On that basis, it could be said that the statistical risk of a person who offended between the ages of 58 and 63 was "somewhere between 13% and 30%". 43 It is also plain that Ms Ferrari was suggesting that the statistical risk would "decrease significantly" from the figure of 13% at age 65 - see the answer to Q4. Ms Ferrari said much the same in her answer to Q6. Moreover, in her answer to Q6, Ms Ferrari referred to personal factors bearing upon the risk of reoffending, including "support, whether they are employed, whether they have any mental health issues, whether they are treated, etc". She continued by saying that she expected the risk of the applicant reoffending would continue to decline over time, noting that his offending had commenced approximately 12 years previously, that he was about to turn 70, and that he had experienced the sanction of five years in custody. 44 This evidence of Ms Ferrari provides additional context indicating the error by the Tribunal in attributing to her the opinion that the applicant's risk of recidivism was somewhere between "13% and 30%". 45 There are in any event limitations on the use which can be made of statistical evidence of the kind to which the Tribunal referred. That is particularly so in the use of statistics concerning likely human behaviour. By way of example, evidence that a particular cohort of persons has a 13% chance of recidivism is equivalent to a statement that 13 out of 100 persons in the cohort will reoffend but that evidence, by itself, says nothing about the likelihood of a particular member in the cohort reoffending. As was pointed out by King CJ in State Government Insurance Commission v Laube (1983) 37 SASR 32 at 33, "the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual". His Honour went on to note that the fact that most people with a blood alcohol level of 0.15% are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable. 46 These passages in Laube were referred to with approval by the High Court in Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111 at [62] when emphasising the need, in a causation enquiry, for evidence suggesting that the individual does not stand apart from the ordinary. In R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317, Mason P referred to Laube at [26] when holding that the "process of assessing the weight of different items of evidence and reasoning to a conclusion on the civil or criminal standard cannot be reduced to mathematical formulae". 47 In the present case, had the Tribunal relied only on the evidence of the statistical risk of the applicant reoffending, I would have thought that there was a good deal to be said for it having failed to address the question required of it, namely, the risk of the applicant personally reoffending, because it had considered instead the risk of a cohort of which the applicant forms part reoffending. 48 However, it is evident that the Tribunal's conclusion that there was a "low but real" risk of the applicant reoffending if permitted to remain in Australia was not based only on its use of the statistical evidence. Nor was it based only on the Tribunal's misunderstanding of Ms Ferrari's evidence concerning the effect of the previous studies. Independently of those matters, the Tribunal had regard to the fact that the applicant's offending between October 2008 and January 2013 was not his "first contact with the criminal justice system for dishonest conduct", that there were no firm plans for ongoing treatment of the applicant despite Ms Ferrari's diagnosis that he had developed clinical symptoms of "Major Depressive Disorder", and that some of the risk factors said to account for his previous offending would continue to be present (including the applicant continuing to be under "continuing financial constraint"). 49 In these circumstances, I do not consider that it should be held that the Tribunal did fail to consider, as required by cl 13.1.2(1)(b) of Direction No 79, the likelihood of the applicant engaging in further criminal or other serious conduct. 50 The Tribunal's errors in the assessment of Ms Ferrari's evidence were not jurisdictional in the sense discussed in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]. In particular, the Tribunal's errors cannot be characterised as so fundamental as to constitute a failure to comply with a statutory condition for the exercise of power and therefore having the consequence that its decision was "no decision at all": ibid. They are not dissimilar in effect to the errors considered in Singh v Minister for Immigration and Border Protection [2019] FCA 428 at [17] and in BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 at [80] as being errors of fact within jurisdiction. 51 In any event, the Tribunal's errors did not result in it assessing the risk of the offending at a higher level than Ms Ferrari had opined. She had described the risk of the applicant reoffending as "low" and the Tribunal accepted that assessment, albeit adding that the risk was "real". 52 For these reasons, I am not satisfied that Ground 2 has been made out. In these circumstances, it is not necessary to address the applicant's submissions as to materiality.

Ground 1 - the alleged failure to consider relevant material 53 In Ground 1, the applicant alleges that the Tribunal erred by failing to take into account "evidence relevant to a consideration of Ministerial Direction 79 … and in doing so failed to discharge its duty of review pursuant to the Act and/or failed to accord procedural fairness". By his particulars to this Ground, the applicant pleads that the Tribunal "did not turn its mind" to the general practitioner, hospital and specialist reports concerning the impact which his removal from Australia would have on his family's health. 54 As noted, the applicant did not make any written or oral submissions in support of this ground. 55 Clause 14.2(1)(b) of Direction No 79 required the Tribunal to have regard to: (b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely). (Emphasis added) 56 This was one of the "other considerations" which the Tribunal was required to take into account, in a context that Direction No 79 contemplated that the "primary considerations should generally be given greater weight than the other considerations" (cl 8(4)). 57 The Tribunal was provided with a considerable amount of material bearing upon the impact of the applicant's removal on members of his family. This included: (a) a letter from a General Practitioner, Dr Pucilowski dated 7 June 2020 regarding her treatment of the applicant's wife (AA). In that report, having referred to the medical conditions from which AA suffers and her observations at recent consultations, Dr Pucilowski said: I am in opinion that [AA's] mental illness, chronic pain, migraines and insomnia will significantly deteriorate if she is left alone in Australia without psychological and physical support of her husband. (b) a letter dated 29 June 2020 from Dr Pucilowski concerning her treatment of the applicant's step daughter (LD) for a variety of medical conditions; (c) hospital discharge summaries dated 29 January 2016, 6 March 2016 and 29 March 2016 for one of the applicant's step granddaughters (HR), one of which contained a diagnosis of "panic attack"; (d) a letter from a General Practitioner, Dr Thompson dated 12 June 2020 concerning her treatment of one of the applicant's step granddaughters (HR) for anxiety and depression. Dr Thompson described the step granddaughter as being "very close to her grandma and grandpa" and said that "she would be very upset if her grandpa was deported and I would be left in the difficult position of trying to treat a medication resistant depression". (e) a letter from a General Practitioner, Dr Salaria dated 3 June 2020 concerning another step granddaughter (RR). Dr Salaria reported on her treatment of RR for "anxiety/depression", referred to RR's feeling that, in the event of the applicant's deportation, "she would not cope and [that] it is already worsened her symptoms". Dr Salaria also reported having referred RR to a psychologist; and (f) a letter from a dermatologist dated 9 June 2020 concerning the condition of alopecia from which RR suffers. 58 In addition, the Tribunal had oral and/or written evidence from these family members. 59 In [152]-[154] of its reasons, the Tribunal accepted that the applicant had "close and loving relationships" with AA, LD, HR and RR, that he has played "a prominent role" in the lives of LD, HR and RR over the years, and that the effect of non-revocation would cause "emotional hardship and distress" for the applicant's immediate family. In addition, the Tribunal referred to Ms Ferrari's evidence that the applicant's deportation would "greatly [affect] the mental health of his family members". It was the Tribunal's acceptance of this evidence that led it to find that the reliance which the applicant and his family members placed on their close relationships weighed substantially in favour of revocation of the cancellation of the visa, at [156]. 60 In these circumstances, the applicant's complaint that the Tribunal did not "turn its mind" to the GP, hospital and specialists reports which he had provided in respect of his family cannot be sustained. This ground of review fails.

Ground 3 - the extent of the applicant's residence in Australia 61 By this Ground, the applicant complained of the Tribunal's application of cl 6.3(5) of Direction No 79 (set out earlier in these reasons). This was one of several principles which cl 7(1) said was to inform the Tribunal's application of (relevantly) the principles set out in cll 13 and 14. 62 The Tribunal referred to cl 6.3(5) when considering the third primary consideration, namely, the "expectations of the Australian community". It regarded cl 6.3(5) as being in inapplicable to the applicant, saying at [108]: He has lived in New Zealand for most of his life and arrived in Australia when almost 40 years of age. He received a conditional discharge for a dishonesty offence five years later in 1995, then committed very serious dishonesty offences in his late 50s and early 60s. 63 The Tribunal then concluded that the expectation of the Australian community was that the applicant's visa should remain cancelled. 64 The applicant's articulation of this Ground is contained solely in its particulars. He contended that cl 6.3(5) did not specify that a higher degree of tolerance could be given only when an applicant arrived in Australia at a young age. Instead, it directed the Tribunal to afford a higher degree of tolerance based on the length of time that the visa holder had been in Australia and that, by not acting on this understanding, the Tribunal had failed to discharge its duty of review. 65 In Mataia v Minister for Immigration and Border Protection [2018] FCA 401 at [61], Farrell J upheld a submission that cl 6.3(5) does not contain a 'mandatory relevant consideration" and that its effect was only to "inform" the decision-maker's consideration of the primary and other considerations contained (relevantly) in cll 13 and 14 of the Direction No 79. Mataia has been followed in subsequent decisions: Holland v Minister for Immigration and Border Protection [2018] FCA 554 at [13]; and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [27]. On the other hand, in Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478 at [98], Kerr J expressed doubt about this aspect of the decision in Mataia. 66 The resolution of the present appeal does not require consideration of those issues and it is best left until an occasion when the Court has the benefit of argument. 67 It is evident that the Tribunal did not overlook the period during which the applicant has lived in Australia. However, the Tribunal considered it pertinent that the applicant had offended after only five years of residence in Australia and commenced his serious offending only 14 years later. Moreover, approximately five and half years of the period during which the applicant has been in Australia has been spent in custody. These were matters which the Tribunal was entitled to take into account when informed by the matters to which cl 6.3(5) refers. No jurisdictional error by the Tribunal is demonstrated.

Ground 4 - the characterisation of the applicant's conduct 68 Ground 4 provides: The Tribunal fell into jurisdictional error in mischaracterising the definition of a (sic) serious conduct as contemplated by Ministerial Direction 79 made under section 499 [of the Act] and in doing so failed to discharge its duty of review pursuant to the Act and/or failed to accord procedural fairness. 69 This Ground was not elaborated by particulars and, as already noted, the applicant did not make any submissions concerning it. 70 The Tribunal characterised the applicant's offending as "objectively very serious", at [72]. Such a characterisation was almost inevitable having regard to the conduct in which the applicant engaged, the period during which he engaged in the conduct, the size of the frauds he effected, and his counsel's acceptance in the Tribunal that "[his] criminal history involves a number of serious offences". Moreover, the Tribunal was correct to reject the submission of the applicant's counsel in the Tribunal that the offences to which cl 13.1 of Direction No 79 is directed are "violent and/or sexual crimes against women, children and vulnerable members of the community". There is no indication in Direction No 79 that it is confined to offences of this kind and good reason to suppose that it is not. 71 The applicant has not demonstrated any basis upon which Ground 4 could be upheld and it too must be dismissed.

Conclusion 72 For the reasons set out above, the application for judicial review must be dismissed. The applicant is to pay the Minister's costs of and incidental to the application, to be taxed in default of agreement. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

Migration Act 1958(Cth)ss 476A, 499(1), 501, 501CA

WHITE J: 1 The applicant is a 70 year old national of New Zealand who came to Australia in April 1989 when he was 38 years old. With the exception of several brief returns to New Zealand, he has resided in Australia continuously since then. 2 The most recent visa granted to the applicant was a Class TY Subclass 444 Special Category (Temporary) Visa, this having been granted on 28 October 2011. 3 On 4 September 2019, a delegate of the Minister cancelled the applicant's visa, acting pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate did so because the applicant did not pass the character test as defined in s 501(6) of the Act by reason that he had been sentenced to a term of imprisonment of 12 months or more and was then serving that sentence. The applicant was released from prison on 3 February 2020. 4 On 29 April 2020, acting under s 501CA(4) of the Act, a delegate of the Minister refused to revoke the cancellation of the visa. The applicant, represented by solicitors and counsel, sought review of that decision in the Administrative Appeals Tribunal (the Tribunal) but was unsuccessful: Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2422. 5 The applicant then filed an appeal in this Court against the decision of the Tribunal. The Notice of Appeal was filed by the solicitors who had acted for him in the Tribunal. They continued to act for the applicant until one week before the scheduled hearing of the appeal on 2 March 2021. Because of the lateness of their withdrawal, the Court adjourned that hearing so as to give the applicant the opportunity to obtain pro bono assistance. However, he was unable to do so and represented himself at the hearing on 29 March 2021. 6 An appeal from the Tribunal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) invokes the original jurisdiction of this Court. Accordingly, as counsel for the Minister pointed out, s 476A of the Act has the effect that the Court lacks jurisdiction to hear and determine an appeal pursuant to that section - see FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44; (2013) 211 FCR 158 and ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28 at [8]. However, the Minister accepted that the proceedings could be understood as an application for judicial review of the kind contemplated by s 476A and therefore within the Court's jurisdiction. The Minister also accepted that the application for judicial review could be regarded as having been commenced on the filing of the Notice of Appeal. I have accepted that it is appropriate to proceed in that way, without requiring the applicant to file any further documents. This does not result in any prejudice to the applicant as the stated grounds of appeal are either expressly or implicitly allegations of jurisdictional error. 7 The circumstance giving rise to the applicant not satisfying the character test is the sentence imposed on him on 17 February 2015 by the County Court of Victoria for three offences of obtaining by deception a financial advantage from a Commonwealth entity and one charge of attempting to do so. The circumstances briefly were that, in 2005, the applicant had set up a company, Aitchison Heavy Haulage Pty Ltd (AHH), and a trust. Between October 2008 and January 2013, the trust lodged 18 Business Activity Statements (BAS Statements) prepared by the applicant by which it fraudulently claimed refunds for fuel purchases by AHH totalling $5,853,709. The Australian Taxation Office paid these amounts to the trustee which the applicant then dispersed for his own purposes and those of his family. In reality, AHH was not a substantial transport company as the applicant worked for himself and had one truck and trailer for hauling heavy machinery. For these offences, the County Court imposed an effective head sentence of eight years, commencing that day, with a recognisance release order after the applicant had served five years.

The review in the Tribunal 8 In order to revoke the cancellation of the applicant's visa, the Tribunal had to be satisfied either that the applicant passed the character test as defined in s 501 or that there was "another reason" why the cancellation decision should be revoked - see s 501CA(4) of the Act. Plainly, the applicant did not pass the character test. Accordingly the applicant's evidence and submissions in the Tribunal were directed to establishing that there was "another reason" for the revocation of the cancellation of the visa. 9 As was noted by Colvin J in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [64], "another reason" for the purpose of s 501CA(4) must be "a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked". That is because it is only a reason of that character which enlivens the statutory power to revoke. 10 In undertaking the review, the Tribunal was obliged to comply with Direction No 79 issued by the Minister on 20 December 2018 pursuant to s 499(1) of the Act. Clause 6.3 contains some general principles: 6.3 Principles (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. 11 Clause 7(1)(b) requires decision-makers, informed by the principles in cl 6.3, to take into account the considerations in Part C in determining whether the mandatory cancellation of a non-citizen's visa will be revoked. 12 Clause 13(2) in Part C identifies three primary considerations to be considered by decision-makers when deciding whether to revoke the mandatory cancellation of a non-citizen's visa: (a) Protection of the Australian community from criminal or other serious conduct; (b) The best interests of minor children in Australia; and (c) Expectations of the Australian community. 13 The content of these primary considerations is elaborated in cll 13.1, 13.2 and 13.3 of Direction No 79. Clause 13.1(2) provides: (2) Decision-makers should also give consideration to: a) The nature and seriousness of the non-citizen's conduct to date; and b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 14 Clause 13.1.2 provides: (1) In considering the risk 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; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). 15 Clause 14 identifies five other considerations to be taken into account, when relevant, by decision-makers deciding whether to revoke the mandatory cancellation of a visa. 16 The Tribunal structured its reasons by reference to Direction No 79, addressing the "primary" and "other" considerations in turn. It characterised the applicant's offending as "objectively very serious" (at [72]), considered that the first and third of the primary considerations identified above weighed substantially against revoking the cancellation of the visa (at [96], [109]), considered that the strength, nature and duration of the applicant's ties to Australia and the extent of the impediments he would face if removed from Australia weighed substantially in favour of the revocation (at [156], [179]) and that the other considerations were neutral (at [98], [141], [158], [160]). It concluded that the protection of the Australian community and its expectations outweighed the contrary considerations and, accordingly, found that there was not "another reason" to revoke the cancellation of the applicant's visa (at [190]).

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