Anees v Minister for Immigration and Border Protection

The issue in this proceeding 11 The applicant filed his initial originating application on 6 July 2018. It contained three grounds. On 1 August 2018, a judge of the Federal Court made orders giving leave for the applicant to file an amended originating application. He did so on 10 October 2018, putting forward a single ground. The ground states that the Tribunal erred in failing to consider the relevant, material and significant evidence contained in a letter from Dr Eric Salter, the applicant's general practitioner. Dr Salter indicated that he did not believe the applicant is at any greater risk of future criminal activity than any other Australian, and that given his dedication to his partner, the risk is negligible. The ground in terms is as follows: 1. The Tribunal committed jurisdictional error by failing to consider "relevant, material and significant" evidence and representations. Particulars (i) The Tribunal had before it a report of Mr Warren Simmons, Psychologist; CB 1158-62 which the Tribunal referred to in the context of asking itself whether "if hard times comes again", would the Applicant "repeat his actions so that he steals to support himself?"; CB 1189 [22]. The Tribunal said that Mr Simmon's evidence "does not answer that question?" and that "Mr Simmons could not otherwise make a prediction of the [Applicant's] behaviour in the future." (ii) However the Tribunal found that if the Applicant were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i); CB 1189 [23]. (iii) The Tribunal had before it a letter from Dr Eric Salter (CB 1163) who had been the Applicant's treating general practitioner since June 2014 and who dealt directly with the question of the likelihood of future offending posed by the Tribunal and referred to in (i) above. (iv) The Tribunal did not refer to this letter from Dr Salter in its decision. (v) The evidence of Mr Salter was relevant, material and significant to assessing the Applicant's representations which the respondent failed to consider.

Consideration 12 The applicant's counsel conceded that the Salter documents (of December 2016, see below) were not psychological reports or risk assessments. However, he emphasised that they were important and relevant: the author being a medical professional with regular and long-term contact with the applicant. The applicant argued that together with Simmons' report, and particularly Mr Simmons' finding that the applicant was at low risk of further offending, these pieces of evidence were relevant to the character test and the exercise of the Minister's (and Tribunal's) discretion. 13 The submissions of the applicant have a forceful simplicity: relevant and important evidence was overlooked and not taken into account by the Tribunal. Were it so simple, there would be a tolerably clear case of a failure to take into account a relevant consideration. There was broad agreement as to that proposition and it is unnecessary to refer to the cases in that regard to which both sides referred. 14 The difficulty arises from how Dr Salter's (relevant) report was put forward to the Tribunal as relevant. In essence, the first respondent submitted that a lack of reference to Dr Salter's report was entirely understandable in the light and context of its use and deployment at the hearing. It was submitted that Dr Salter's report was put before the Tribunal only as supporting material for the report of an expert psychologist, Mr Simmons, and was not relied upon independently and separately as supporting Mr Simmons' views. Indeed, the first respondent submitted that, in the circumstances that the matter was presented to the Tribunal, it would have been a breach of procedural fairness to the first respondent to have dealt with Dr Salter's report in the way contended for by the applicant. 15 It should be noted at the outset that there was no argument about the procedure and method of the Tribunal. Indeed, the argument proceeded on an agreed basis that the Tribunal was, broadly, perhaps with exceptions not relevant here (see, for example, Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 64; 54 FLR 334) entitled to deal with material put before it conformably with the purpose of its production or tender to the Tribunal. Nor was there any debate about the proposition that the Tribunal was entitled to proceed on the basis of the material placed before it; and it need not (and should not) search for different and divergent material that had been before the earlier Tribunal. 16 It is appropriate now to descend into a little more detail. 17 The first respondent first emphasised some factual elements of the matter. The applicant was represented by senior and junior counsel (Mr Burnside SC and Mr Farhall), and a solicitor, before the Tribunal. At this hearing, there was discussion of the evidence the applicant was seeking to reply upon. Dr Salter's letters (there were three, see below) had not been tendered before the newly constituted Tribunal. The first respondent's counsel sought clarification as to what material was being relied upon, with particular concern over the possibility that Dr Salter's opinion would be included. Mr Burnside SC confirmed that Dr Salter's letters would not be relied upon by the applicant. During cross-examination of Mr Simmons, who was a witness before the Tribunal, the Minister asked whether Mr Simmons had relied upon and assumed the correctness of certain documents, including Dr Salter's letter, in making his report. Mr Simmons indicated he had. In re-examination, Mr Farhall for the applicant asked Mr Simmons whether the letter from Dr Salter was one of the documents relied upon. Mr Simmons answered "yes", and the letter was put into evidence. At no time during addresses to the Tribunal did Mr Burnside refer to the letter by Dr Salter. It is plain from the transcript of the hearing before the Tribunal that the concern of counsel for the Minister was to understand what evidence was being led and if Dr Salter was to be directly or independently relied upon, he would be required for cross-examination. 18 In this context, the first respondent directed its submissions to two subjects: first, whether the applicant had established that the Tribunal did in fact fail to consider the evidence of Dr Salter; secondly, if so, whether the evidence was of such significance to the review that the failure to consider it amounted to jurisdictional error. 19 It is important at this point to note that there are three documents by Dr Salter. The applicant's submissions refer to two letters from Dr Salter: one dated in 2015 and the other on 9 May 2016. The first respondent's submissions focused on the letter from Dr Salter dated 5 December 2016. The first letter was an attachment to the statement of reasons for refusal of a visa on 21 September 2016. The second, dated 9 May 2016, was sent to the Visa Applicant Character Consideration Unit by email by the applicant. The third was tendered at the second Tribunal hearing following re-examination of Mr Simmons, a witness for the applicant before the Tribunal. 20 The letters dated 2015 and 9 May 2016 were not placed before the present Tribunal by the applicant represented as he was by counsel. As noted earlier, the Tribunal heard the matter afresh. The Tribunal did not have regard to evidence given in the previous hearing unless it was again given or admitted in evidence: [1] of the Tribunal's reasons. As I said, there is no suggestion that this approach is to be criticised. 21 On the basis that the letter being referred to by the applicant is that dated 5 December 2016, the first respondent argued that it is improbable that the Tribunal failed to consider Dr Salter's letter. The Tribunal stated that it had considered "all of the evidence" before it in relation to the issue of recidivism. The weight given to this statement depends on context, requiring the need for substantive (not merely formal) consideration of material. Here, the letter by Dr Salter might not have been expressly referred to by the Tribunal, quite reasonably, for any one or more of the following reasons. First, the applicants expressly indicated during the hearing that they did not rely upon the letter of Dr Salter. Secondly, the letter of Dr Salter was not relied upon in the oral submissions of the applicant. The first respondent emphasised that no submission was made by the applicant in response to the first respondent's "clear submission" that the evidence of Mr Simmons should be afforded little weight because it was based in part on an assumption of the accuracy of Dr Salter's letters (which had not been tested). 22 Looking at the conduct of the hearing before the Tribunal, it is plain that the December 2016 report of Dr Salter was only ever put forward as support and background for Mr Simmons' views. It can be reasonably inferred that a choice was made not to expose Dr Salter to cross-examination. It would have been wrong and unfair of the Tribunal to use the letter as the independent basis for a finding in favour of the applicant, otherwise than as material Mr Simmons took into account. In these circumstances, there was no call for the Tribunal to consider or refer to the letter separately, or at all. 23 Even if it is to be concluded that there was a failure to consider the evidence, the letter from Dr Salter was not of such apparent value that failing to consider it amounts to jurisdictional error. Its value should be seen in the context I have described. The only reason for finally tendering the letter by Dr Salter was in the context of Mr Simmons relying upon it. The applicant, through his counsel, did not rely on it directly, which course, as I have said, would probably have required Dr Salter's views to be tested in cross-examination. However, the Tribunal did not dismiss Mr Simmons' report because the Tribunal did not accept Dr Salter's letters. Rather, the Tribunal indicated that it did not give much weight to the conclusion of Mr Simmons because Mr Simmons could not predict the applicant's future behaviour other than by noting that his conduct was a product of particular circumstances and that he appeared to be at low risk of re-offending should such circumstances not arise. This much, on a fair reading of its reasons, the Tribunal itself largely accepted. What made this insufficient was that it was the applicant's own actions that created those particular circumstances of homelessness and financial hardship: see [22] of the Tribunal's reasons. Later, at [81], the Tribunal reasoned that "[t]here is a real risk that he would go down the same path if he were faced with hardship". In this context and at this stage of considering and dismissing Mr Simmons' report, Dr Salter's report was not directly relevant. The submission of the appellant was first that Dr Salter's report should be read as assuming that these conditions of life's hardships would repeat themselves. I cannot agree. Dr Salter's views plainly see a changed man, under changed circumstances. The Tribunal was entitled to approach the material on that basis. 24 In light of the above, the application should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.