Ali v Minister for Home Affairs

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from the orders of the primary judge in Ali v Minister for Home Affairs [2020] FCA 538 made on 24 April 2020, dismissing the appellant's application for judicial review of a decision made by the second respondent (the Tribunal), which had affirmed the decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of the appellant's Partner (Residence) (Class BS) Subclass 801 - Partner visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). 2 The appellant submits that the primary judge erred in failing to conclude that the Tribunal's decision was vitiated by jurisdictional error because the Tribunal: (a) failed to consider a "Pre-Release Report" potentially relevant to the appellant's risk of recidivism (ground 1); (b) erred by not accepting that the appellant had no prior criminal history by having regard to an offence which had been proved but where no conviction was recorded and failing to appreciate that another charge it understood was "unresolved" had in fact been determined (ground 2); and (c) denied the appellant procedural fairness because it did not squarely put its conclusions about aspects of the appellant's risks of recidivism to the appellant (ground 3). 3 The appeal seeks to rehearse most of the grounds contended for below, and it raises no point of principle. In our view, the learned primary judge correctly rejected each of the grounds of appeal, for the reasons contained in her Honour's careful and detailed reasons. 4 We do not propose to set out in these reasons the background to the case, the appellant's criminal convictions for dishonesty, or the decision of the Tribunal. They are set out in the reasons of the primary judge at [5]-[21]. No point is served by repeating what is said in those paragraphs here. 5 Ground 1 is the same as ground 1 below. It is directed to the Tribunal's finding that "it would be unsafe for this Tribunal to make any finding other than there being a strong likelihood of [the appellant] engaging in further criminal or other serious conduct were he to be released back into the community". 6 As the primary judge explained (at [25]), in addressing the risk of re-offending before the Tribunal under paragraph 13.1.2(1) of Direction No 79 - visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), the appellant relied on a Pre-Release Report dated 7 June 2018 and signed by a Community Corrections Officer at the Silverwater Parole Unit and the Unit Leader at the Silverwater Parole Unit. It was prepared for the purpose of assessing whether the appellant should be released on parole. 7 Both before the primary judge and on appeal, the appellant relied on the following passages in the report: During his period of incarceration, [the appellant] has not been subject to any internal infractions and CSNSW records lack a record of recent case notes relating to the offender's behaviour, indicating the likelihood that the offender has caused minimal management concerns during his period of incarceration. … Offence-targeted programs Due to the offender's lack of [criminogenic] needs and subsequent Low LSI-R, he was not deemed suitable for compendium programs. However, the offender will be required to re-engage with psychological services should he be supervised in the community as deemed appropriate by a supervising officer. Further, [the appellant] stated his intent to re-engage with mental health intervention should he be released to the community. … RISK OF RE-OFFENDING Administration of instruments Taking into account the above information and incorporating a standardised risk/needs instrument, the offender is suitable for a Low level of intervention by Corrective Services NSW, commensurate with the assessed risk and identified criminogenic needs. … ASSESSMENT AND RECOMMENDATIONS [The appellant] presented as an offender who appeared to provide a lack of insight into his offending behaviours and initially displayed limited engagement with the interview process related to this report. However, at subsequent interview, [the appellant] presented as much more engaged, however appeared to fixate on his legal appeal and tended to relate all information back to this subject. Additionally, the offender could not provide any clear protective factors within the community including the family support, employment or accommodation should he be released to the community. While the offender has provided minimal management concerns it is unclear how [the appellant]'s period of incarceration has impacted his attitude towards criminal enterprise, given his ongoing denial of the offences. However, in conjunction with the offender's incarceration, it would appear that [the appellant]'s perceived shame, loss of his family, removal of parental support and cancellation of his Visa status may all provide a salutary effect on his future antisocial conventions. In this regard his Honour stated 'He, I suspect, also represents good prospects of rehabilitation'. 8 The appellant submitted below and on appeal that, there being no reference to the report in the Tribunal's reasons, it had been overlooked, in circumstances where the material in it about the prospects of the appellant re-offending, and the reliance placed on it by the appellant at the hearing before the Tribunal, obliged the Tribunal to consider it. 9 The primary judge rejected ground 1 (at [40]ff) for the following reasons, which, in our view, are with respect self-evidently correct: (a) it does not necessarily follow from the absence of an express reference to the report that the Tribunal failed to engage in an active intellectual process directed at the representations and material provided by the appellant to the Tribunal; (b) given the prominence of the report in the appellant's cross-examination and submissions, and the fact that the Tribunal hearing preceded the delivery of reasons by just over a week, it is highly improbable that the Tribunal was unaware of the report; (c) the report addressed the question of risk within a very different statutory context from that within which risk falls to be considered under s 501(3A) of the Act; (d) the Tribunal was concerned "about the causative factors behind [the appellant's] offending and, assuming they were identified or diagnosed, whether such factors were the subject of remedial treatment and management" and "an independent and expert report about the factors in a psychological constitution giving rise to a propensity to offend", which were not addressed in the report; and (e) the Tribunal had before it an applicant who had been convicted of serious dishonesty offences who, in its view, was continuing a dishonest denial of his offending and lacked insight into his offending. 10 The primary judge thus concluded that the appellant "ha[d] not displaced the inference that the [report] was not mentioned in the Tribunal's reasons because the Tribunal did not consider it to be material and was therefore under no obligation to refer to it", and that "[t]his is not a case where, for example, the evidence relied upon was 'so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it' [citing SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [19] (Perram J)]". 11 In our view, that conclusion is unassailable. 12 Ground 2 was said by counsel for the appellant to "most closely correlate" with ground 3 below. 13 In any event, the appellant's submissions below were repeated on appeal. They are as follows. 14 The Tribunal was required to take into account the primary considerations in Part C of Direction 79, which included "the nature and seriousness of the non-citizen's conduct to date" and "the frequency of [his] offending and whether there is any trend of increasing seriousness". 15 The appellant submitted below and on appeal that: … the position established by the National Police Certificate and the [appellant's] Victoria Police Criminal History Report was as follows: (a) on 14 March 2013, the [appellant] was fined $500 with no conviction recorded by the Melbourne Magistrates Court for a failure to answer bail in connection with a robbery offence; (b) on 14 March 2013, the Melbourne Magistrates Court adjourned a robbery charge without conviction to 12 September 2014. It was subsequently dismissed; and (c) on 22 May 2017, the [appellant] was sentenced by the NSW District Court in connection with the identity offences in 2014-2015 that led to his imprisonment. The Tribunal committed two material errors in light of this evidence. First, the Tribunal wrongly proceeded on the basis that the robbery charge was unresolved, stating at [54] that: It is not correct for [the Appellant] to say that he has '… no criminal record prior to these 11 x counts convictions'. There is the further element of the apparently unresolved nature of the 'Robbery' offence that was 'without conviction, adjourned to 12/09/2014'. The National Police Certificate and the Victoria Police Criminal History Report are inconsistent with the finding that the robbery charge was unresolved. To the contrary, they demonstrate that the robbery charge was dismissed, which is a clear resolution of the charge. In these circumstances, the Tribunal's decision was affected by jurisdictional error. This error can be characterised in several ways: (a) The Tribunal failed to take into account substantial, cogent material before it - namely, the Victoria Police Criminal History Report, particularly the part that indicates that the charge was dismissed. A misunderstanding of relevant material in this manner may amount to a constructive failure to take account of that relevant material: see e.g. MIMIA v VOAO [2005] FCAFC 50 at [13]; (b) The Tribunal made a significant finding in the absence of evidence, or which was not open on the material before it. The evidence before the Tribunal did not, and could not, support the Tribunal's finding that the robbery charge was unresolved; (c) A constructive failure to consider the matters in Direction No 79 arising from a failure to take account of relevant material may give rise to jurisdictional error: see e.g. Gbojueh v MIAC (2012) 202 FCR 417 at 430 [65]. The Tribunal misconstrued and, therefore, constructively failed to take into account, the nature and seriousness of the Appellant's conduct (a mandatory consideration). The Tribunal hence failed to comply with Direction No 79, or misapplied a mandatory consideration under Direction No 79. … Second, the Tribunal erred by finding that the Appellant, by referring to the sentencing Judge's finding on 22 May 2018 that the Appellant had no criminal record prior to the identity offences, had referred to a matter that was 'plainly incorrect and misleading' ([54]) because of the unresolved robbery offence. In making this finding, the Tribunal fell into jurisdictional error. Again, this error can be characterised in several ways. (a) The Tribunal failed to take into account relevant, cogent evidence (and hence failed to take a relevant consideration into account). The Appellant's claim that '[a]s the judge remarked on 22 may 2018, I have no criminal record prior to these 11 x counts convictions' ([52]) was in fact a correct statement of what Judge Toner had said in his remarks on sentence; (b) The Tribunal made a significant finding in the absence of evidence, or which was not supported by the evidence before it. There was no evidence to support the Tribunal's finding that it was 'plainly incorrect and misleading' to state that the sentencing Judge had said that the Appellant had no criminal record prior to the identity offences. It was in fact what his Honour Judge Toner had stated - there was no 'unresolved' robbery charge, and even if there had been an unresolved robbery charge 9 it did not follow that it was plainly incorrect or misleading to say what the Appellant had said. (Emphasis in original.) 16 The relevant passages in the Tribunal's reasons said to give rise to those alleged jurisdictional errors are as follows: 51 The [appellant]'s submissions reveal a concerning lack of insight into his offending. Even a cursory review of his written submissions indicate that he found himself on the wrong side of the jury's verdict and otherwise now finds himself in his present predicament because (1) other people - such as his lawyers - have not done their job properly, or (2) earlier decision makers have not done their job properly and (3) we should not regard his offending as in any way serious because he has not committed the offences at all and will be vindicated when, at some undefined point, his convictions are quashed on appeal. 52 In his own submissions, the [appellant] says he is of little or no risk to the Australian community because of the following factors: • 'None of the charges I got convicted of are against venerable [sic] members of society. • None of the charges I got convicted of involve illegal recreational drugs. • None of the charges I got convicted are of sexual in nature [sic]. • None of the charges I got convicted of are violent. • I have a excellent [sic] work history during my imprisonment. • I have not even one breach of prison discipline that is recorded against my name. • I don't have a drug; Alcohol problem. • I have never been imprisonment before [sic]. • As the judge remarked on 22 may 2018, I have no criminal record prior to these 11 x counts convictions.' 53 Most, if not all of these factors are misconceived and irrelevant to any assessment of any future risk of reoffending. If the [appellant] cannot grasp the gravity and seriousness of what he has done and appropriately apologise and/or express remorse for it, how can the Tribunal reasonably expect that if presented with a similar opportunity in future, he will have the necessary insight and protective impulse to desist from such activity? 54 The further point to note is that several of these factors are plainly incorrect and misleading. For reasons I have presently stated, I am of the view that his offending has had, or can have, the potential of affecting the interests of vulnerable members of our community. It is not correct for him to say that he has '…no criminal record prior to these 11 x counts convictions'. There is the further element of the apparently unresolved nature of the 'Robbery' offence that was 'without conviction, adjourned to 12/09/2014'. 17 The primary judge rejected grounds 2 and 3 (now ground 2) for the following reasons: 51 First, while at [35] the Tribunal referred to a 'conviction' for breaching bail, it is clear that the Tribunal was well aware that no conviction was recorded for this offence, as it expressly recognised at the outset of its reasons at [4]. Nonetheless, it is clear that the offence was found to have been proved because, as the Tribunal also found at [4], the Melbourne Magistrates Court imposed a fine of $500 for the offence. The [appellant] also admitted the commission of the offence under cross-examination before the Tribunal (Tribunal transcript at pp. 14-15). In this regard, while I note that [the sentencing judge] found that the [appellant] had no criminal record, that was in the context of delivering sentencing remarks. That finding is irrelevant in light of the evidence before the Tribunal as to the commission of the earlier offence in the context of determining whether to revoke the mandatory visa cancellation decision under the Act. 52 In these circumstances, the reference at [35] of the Tribunal's reasons to the [appellant's] 'conviction' for breaching bail is fairly read as no more than a loose way of describing the outcome of the criminal prosecution. In this regard, it is well established that 'a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker' and therefore, the reasons of an administrative decision-maker 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error': Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (quoting with approval the approach adopted in Collector of Customs v Pozzolanic [1993] FCA 322; (1993) 43 FCR 280 at 287). 53 Secondly, in these circumstances no error is revealed in the Tribunal's rejection at [54] of the [appellant's] submission that he had no criminal record before the 11 convictions of identity fraud on the basis that the submission was 'plainly incorrect and misleading'. To the contrary, the National Police Certificate in evidence before the Tribunal cited the Victoria Police Criminal History Report as recording 'MELBOURNE MAGISTRATES COURT 14/03/2013 FAIL TO ANSWER BAIL Without conviction, fined $500.00'. 54 Thirdly, no jurisdictional error is apparent in the Tribunal's incorrect finding that the robbery charge against the [appellant] was unresolved (at [54]) despite the National Police Certificate recording that the charge was 'Dismissed COMPLIANCE WITH BOND/UNDERTAKING' on 12 September 2014 (CB166). It is apparent that the Tribunal overlooked this notation, and took account only of the earlier notation on 14 March 2013 that the robbery charge had been adjourned to 12 September 2014 without conviction. The short point is that the Tribunal's error was not material because the Tribunal did not take that erroneous finding into account but merely noted it: Hossain v Minister for Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [31]; Minister for Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. Further, the notation on the National Police Certificate effectively means that, while it was accepted that the [appellant] had committed the offence, no conviction was entered upon his complying with the undertaking. As such, even if the Tribunal had correctly read the National Police Certificate, it could not have assisted the [appellant's] case before the Tribunal and led to any different decision. It follows that the error made by the Tribunal was not material for this reason also. 55 Fourthly, it might be thought somewhat inapt to find at [35] that the [appellant's] offending demonstrated a 'trend of increasing seriousness' when the Tribunal found that there was only one prior offence. However, that does not establish a jurisdictional error. Rather, as the Minister submitted, the important point is that these were integers taken into account by the Tribunal in assessing the seriousness of the [appellant's] offending conduct. In this regard, objectively speaking there could be no doubt but that the [appellant's] conduct in the last 11 offences was 'very serious' as the Tribunal found at [35]. Equally, there can be no doubt that the 11 offences were objectively more serious than the earlier offence of breaching bail and therefore that the seriousness of the [appellant's] offending had escalated. 18 In our view, that reasoning is, with respect, again unassailable. The assertion (and it is was no more than that) by counsel for the appellant that her Honour erred must be rejected. 19 Ground 3 (ground 4 below) is a procedural fairness point. It is equally without merit. 20 The appellant submits that the Tribunal did not put him on notice of, or provide him with an opportunity to respond to, these findings: (a) a comparative analysis of his offending in 2013 and in 2014-2015 was clearly indicative of a significant escalation in the seriousness of his offending and of a trend of increasing seriousness; (b) the appellant's submissions as to the risk that he would re-offend if released were "plainly incorrect and misleading"; and (c) the absence of any independent and expert report about the factors in his psychological constitution giving rise to a propensity to offend was material to the Tribunal's conclusion that there was a likelihood he would re-offend if released back into the community. 21 It is, of course, correct to say, as the primary judge said, that the Tribunal is required to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power and advise of any adverse conclusions which would not obviously be open on the known material. 22 But, as the primary judge held, there was no failure by the Tribunal to do so in this case. 23 As to the first finding (see [20(a)] above), as the primary judge held, the finding was not material to the Tribunal's decision. 24 As to the second finding (see [20(b)] above), again as the primary judge held, there was no procedural unfairness in the Tribunal making this finding when the appellant had been cross-examined specifically about his prior offending. 25 As to the third finding (see [20(c)] above), again as the primary judge held, it was for the appellant to raise and persuade the Tribunal of his claims. The Tribunal is required to consider only those claims which are expressly raised or arise squarely on the material before it. And it is not the Tribunal's role to advise an applicant about gaps or deficiencies in their evidence, such as the absence of an independent expert report addressing factors relevant to the risk of harm which he potentially posed to the Australian community, because to do so would impermissibly require the Tribunal to give an applicant a running commentary on its evaluation of the applicant's case. As the primary judge further held: 63 Furthermore, each finding challenged … was taken into account by the Tribunal in reaching its conclusion that with respect to Primary Consideration A the [appellant's] offending could readily be characterised as 'very serious' and that there was a strong likelihood of him re-offending with potentially more serious and catastrophic consequences for the Australian community. These were not new issues. To the contrary, in common with the Tribunal, the delegate found that there was 'a serious ongoing risk that [the appellant] will reoffend' and that should he do so in a similar manner, 'it could result in financial harm to members of the Australian community' (Delegate's reasons at [30]). The fact that the Tribunal reached that conclusion having regard to the additional findings complained of by the [appellant] does not necessarily mean that there was a denial of procedural fairness. 64 Finally … 'within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case'. In the present case, each of the findings challenged … are in the nature of an evaluation of the [appellant's] case and were obviously open on the known material. As the Minister submits, therefore, [it] ultimately goes no higher than to complain of a failure by the Tribunal to inform the [appellant] of its mental thought processes contrary to established principle. (Citations omitted.) 26 The appeal will accordingly be dismissed, with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, O'Callaghan and Abraham.