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

Number of paragraphs: 79

Date of last submission filed on behalf of the Applicant: 10 March 2021

Date of last submission filed on behalf of the First Respondent: 15 March 2021

Date of hearing: 17 February 2021

Counsel for the Applicant: Mr L Karp

Solicitor for the Applicant: Fisher Dore Lawyers

Counsel for the First Respondent: Mr A Psaltis

Solicitor for the First Respondent: Clayton Utz

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: LOGAN J DATE OF ORDER: 16 APRIL 2021

1. The application be dismissed.
2. The applicant pay the first respondent's costs of and incidental to the application, to be fixed by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The applicant is a citizen of the Islamic Republic of Afghanistan. Though a citizen of that country, he has never lived there. His Afghanistan citizen parents fled from that country to the neighbouring Islamic Republic of Pakistan before he was born. The applicant was born in Pakistan in 2000. 2 When the applicant was 10 years old, his father returned to Afghanistan, never to be seen by his wife and two children (by then, the applicant had a younger brother) again. The applicant's father is believed to have been killed there in a Taliban initiated bomb blast. 3 In 2013, the applicant's mother obtained the benefit of a Class XB, subclass 204 "women at risk" visa, issued under the Migration Act 1958 (Cth) (the Act). On the strength of their mother's visa, the applicant and his brother received what might be described as derivative visas of the same class. Later that year, the family entered Australia lawfully pursuant to those visas. 4 One evening in March 2015, when he was 15 years old, the applicant committed two offences of rape, one as the principal offender, the other as an accessory. He had two co-offenders, each of whom was an older friend of Afghani origin. The victim was a young lady. 5 The applicant pleaded not guilty in respect of these offences on the strength of a denial of involvement. However, on 1 December 2017, after a trial in the District Court of Queensland (District Court), he was found guilty by a jury. An unsuccessful appeal against conviction to the Queensland Court of Appeal followed. On 7 December 2018, in respect of each offence, the District Court sentenced the applicant to detention for a period of two years, to be served concurrently. The applicant was sentenced as a juvenile, on the basis that he was a juvenile when the offences were committed. 6 In 2019, in light of the sentence imposed on the applicant, a delegate of the Minister responsible for the administration of the Act cancelled the applicant's visa, pursuant to s 501(3A) of the Act. There has never been any controversy that cancellation of the visa was authorised by the Act. 7 Subsequently, the applicant made a representation to the Minister that the cancellation of his visa should be revoked. On 1 July 2020, a delegate of the Minister decided not to revoke that cancellation. 8 The applicant then sought the review of the delegate's decision by the Administrative Appeals Tribunal (Tribunal). On 23 September 2020, the Tribunal decided to affirm the Minister's delegate's decision not to revoke the cancellation of the applicant's visa. 9 The applicant has now applied to this Court for the judicial review of the Minister's delegate's decision. As is proper, the Tribunal has filed a submitting appearance. The Minister is the only active respondent. 10 Given the class of visa which formed the basis for the applicant's entry into Australia, some might think there is a certain, perverse irony in his offending conduct and a fitting quality not only in the cancellation of that visa but also in the Tribunal's decision not to revoke that cancellation. However that may be, one feature of our country, which we have inherited from the United Kingdom and which distinguishes Australia from less happy lands, is that, heinous though the applicant's offending conduct was, he is entitled as of right to challenge before an independent judiciary the legality of the Tribunal's decision. 11 That right of challenge may be exercised in this Court, pursuant to the original jurisdiction conferred by s 476A of the Act. Even if there were no such conferral, a like right of challenge could be exercised in a proceeding instituted in the original jurisdiction of the High Court of Australia, as constitutionally entrenched by s 75(v) of the Constitution. It is, however, no part of the judicial function in the determination of such a case to make any decision on the factual merits of the Tribunal's decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35. 12 By his amended application, the applicant alleges that the following jurisdictional errors attended the Tribunal's decision: 1. The Tribunal failed to lawfully consider the evidence of psychologist Marissa Piat and of Professor James Freeman. Particulars (a) Re Ms Piat's evidence; (i) The Tribunal misunderstood and thus failed to consider her statement at CB 115 lines 44-45 that the applicant saw the victim, "engaging in sexual behaviour with another party", as that he saw her engaging in consensual sex with another person. (ii) The Tribunal misconstrued Ms Piat's statement that the applicant, "does continue to externalise blame to his co-offender" (CB 115 lines 51-52) as the applicant being influenced to commit the offences by his co-offender. (iii) The Tribunal failed to consider the applicant's evidence that his bail conditions did not permit him to contact the victim, in its assessment of whether he empathised with her. (b) Re Professor Freeman's evidence the Tribunal preferred the evidence of Dr Danielle Shumack to his in part because it erroneously believed that Dr Shumack has the transcript of the applicant's trial before her. 2. It was not open and therefore legally unreasonable for the Tribunal to find that, (a) The applicant's response to questions asked of him by the Tribunal indicated that he had had no interest in undergoing specific sex offender treatment (reasons for decision at [85] - [86]). (b) The applicant had not made the positive progress spoken of by Ms Piat, psychologist (reasons for decision at [89]). 3. The Tribunal erred in failing to consider the evidence relevant to the issue of whether non refoulement obligations were owed to the applicant. Particulars (a) … (b) The written evidence of Hassan Ghulam, and submissions directed thereto, to the effect that the applicant would be readily identifiable as having spent time in a Western country, and thus may be the victim of persecution for reason of membership of a particular social group (reasons for decision at [156]). 4. The Tribunal erred in failing to consider a submission that because the applicant had never been to Afghanistan any place in that country, including Kabul, would be a place of relocation, and so reasonableness of relocation had to be considered. 5. The Tribunal's findings as to the evidence of Professor Freeman at CB 619 were legally unreasonable. Particulars (a) Professor Freeman's evidence was to the effect that were the applicant to be removed to Afghanistan, it is likely that he would suffer stressors which would impair his functioning to the extent that he would be incapable of gaining or retaining employment and meeting the basic necessities of life. (b) The Tribunal, at CB 919 [182] unreasonably equated the applicant's being threatened in immigration detention with his being exposed to surging crime, violence and bombings should he be removed to Afghanistan and attempt to live in Kabul. (c) The Tribunal acted unreasonably in preferring its own lay opinion as to the psychological effect on the applicant of crime, violence and bombings in Kabul to that of a professor of [psychology]. [sic] 13 At the commencement of oral submissions, the applicant, by his counsel, informed me that grounds 1(a)(ii) and 4 of the grounds of review were not pressed. 14 In support of the remaining grounds of review, the applicant sought to rely upon an affidavit of his solicitor, Ms Caitlin White, to supplement the material before the Tribunal. Annexed to this affidavit was certain material found in the appeal book filed in the Queensland Court of Appeal in the appeal against conviction. Ms White's firm had acted for the applicant in that appeal, as well as in the later proceeding before the Tribunal. The material gave greater precision than that before the Tribunal as to the course of proceedings in the District Court and, in particular, to roles undertaken by the District Court judges who had been involved in the various stages of those proceedings. 15 Whether or not that affidavit was admissible proved controversial, albeit made so in an unorthodox way by the Minister. On the one hand, the Minister did not object to Ms White's affidavit, yet on the other he submitted that it was, as a matter of law, irrelevant. In these circumstances, it was convenient to hear oral submissions taking into account the impact inadmissibility might have but reserving the question of admissibility for determination in conjunction with the final resolution of the judicial review application, after the receipt of supplementary written submissions. 16 Consideration of the remaining grounds of review first requires that the admissibility of Ms White's affidavit be determined. 17 In this Court, admissibility of evidence is, overarchingly, governed by s 56 of the Evidence Act 1995 (Cth) (Evidence Act). This section applies just as much to a judicial review proceeding as it does to any other proceeding in the Court. It provides: Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. Thus, subject to statutory exceptions not presently pertinent, relevance is the applicable touchstone. 18 What amounts to relevant evidence is also the subject of statutory prescription. Section 55 of the Evidence Act provides: Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence. Thus, the question for resolution becomes whether Ms White's affidavit and, more particularly, the annexed documents could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding? 19 Most of the facts in the present proceeding are, unsurprisingly given its character, not in issue - the making of a decision by the Tribunal, the reasons given by the Tribunal for that decision and the material which was before the Tribunal at the time when that decision was made. That material included the direction (Direction 79) given by the Minister pursuant to s 499 of the Act and the representations as to revocation made by the applicant pursuant to s 501CA(3)(b) of the Act. 20 What then are other facts at issue in the present proceeding? 21 Facts will be at issue in a judicial review proceeding if they are made so by a permissible ground of jurisdictional error. The grounds pleaded do not raise as issues bias, be that actual or apprehended, on the part of the Tribunal or some failure of translation of the oral evidence given by the applicant such that the hearing miscarried. It is readily conceivable how such grounds might yield a fact at issue and require the admission of evidence not before the Tribunal in order to determine them on judicial review. 22 The metes and bounds of evidentiary admissibility in respect of other jurisdictional error grounds will, necessarily, be dictated by the text of the provision empowering the making of the decision under judicial review. Here, that provision is s 501CA(4) of the Act: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 23 The Tribunal was exercising the merits review jurisdiction conferred on it by s 500(1)(ba) of the Act in respect of a decision under s 501CA(4) made by a delegate of the Minister. In so doing, the Tribunal's task was to reach for itself the correct or preferable decision under that subsection, being invested for that purpose with all of the powers, discretions and statutory obligations of the delegate: s 43, Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 24 In relation to admissibility, the critical feature of s 501CA(4) is s 501CA(4)(b)(ii), which specifies as a "jurisdictional fact" a particular state of administrative satisfaction. Sitting in place of the Minister's delegate, the Tribunal was obliged to reach its own state of administrative satisfaction, in no way constrained by the earlier view of the Minister's delegate. It is not for the Court to reach any such state of satisfaction. 25 That s 501CA(4)(b)(ii) is conditioned upon administrative satisfaction as to a nominated state of affairs (the existence of "another reason" in this type of case) makes the provision one of a kind comprehensively described by reference to pertinent authorities by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at [127] - [136]. One of those authorities was Municipality of Bankstown v Fripp (1919) 26 CLR 385, in which, at 403, Isaacs and Rich JJ stated: With regard to sec. 154 we would add this:- In differentiating between specific special rates which do, and those which do not, in fact, confer special benefit on a locality, and as to the extent of that locality, various opinions may be held. To prevent litigation on that question of fact (see, for instance, Borough of Alexandria v. Cooper) Parliament has described the services which may be the subject of a local rate as those "which in the opinion of the council" would be of such limited benefit. Provided only the service is one which is reasonably capable of being so considered, the question of whether it "would be" of such benefit is concluded by the council's opinion. [Footnote reference omitted] 26 The whole point of a provision conditioned upon a state of administrative satisfaction as to a particular state of affairs is to prevent subsequent litigation on the existence or otherwise of that state of affairs. Instead of the existence of the state of affairs being the relevant touchstone, administrative satisfaction as to its existence is substituted. Such a provision does not prevent any litigation in respect of the resultant administrative decision but rather confines it, in relation to the administrative satisfaction, to the error grounds notably described by Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, at 360. 27 The conclusion just reached might be thought fatal to the admission of Ms White's affidavit. However, the applicant submitted that its admission was supported by a statement made by Lockhart J in Attorney-General (Northern Territory) v Minister for Aboriginal Affairs (1989) 23 FCR 536 (Attorney-General (Northern Territory) v Minister for Aboriginal Affairs), at 539 - 540. Albeit at the price of some length, it is necessary to set out not just that statement but the context in which it was made: The admissibility of evidence not before the decision-maker depends upon the grounds of review on which the applicant relies before the Court. In the case of some grounds of review (for example, if the decision-maker failed to take into account a relevant consideration) (s 5(2)(b) of the Judicial Review Act) or took into account an irrelevant consideration (s 5(2)(a)) it is difficult to see the relevance of material not before the decision-maker. Other grounds of review (for example, unreasonable exercise of the power (s 5(2)(g)) will generally, lead to the evidence consisting primarily of the material before the decision-maker. Where the ground relied upon is error of law (s 5(1)(f)) the trend of judicial opinion is that the evidence before the Court is confined to the material before the decision-maker: Attorney-General (NT) v Minister for Aboriginal Affairs (unreported, Federal Court of Australia, Wilson J, No G235 of 1988, 3 August 1988), p 13; Ruangrong v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Davies J, 29 March 1988), p 7. The primary ground of attack upon the first respondent's decision in this case is "that the decision was not authorised by the enactment in pursuance of which it was purported to be made": s 5(1)(d) of the Judicial Review Act. The determination of whether an action taken falls within the power conferred will often centre on issues of statutory interpretation. The court's task in such a case is essentially that of resolving a legal question, and, where that is the extent of the issue, there will ordinarily be no necessity for adducing material which was not before the decision-maker. Where however there is a question of mixed fact and law, that is, where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material. That evidence would be directed to establishing that on the true facts of the case, regardless of the material that was actually before the decision-maker the decision made was one which could not have been lawfully made. In this case the applicants seek to establish that the true fact of the matter is that certain roads within the relevant area were in fact public roads within the meaning of s 11(3) and could not therefore lawfully be included within a grant of land under the Act. In my opinion it is open to the applicant to establish that ground by adducing evidence which was not before the first respondent when he made his decision. [Emphasis added] 28 I respectfully agree with all that Lockhart J stated in the passage quoted. His Honour's statement was made in relation to a proceeding instituted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and with reference to the grounds of review specified in s 5 of the ADJR Act. What his Honour stated applies just as much to analogous jurisdictional error grounds available in the present type of proceeding. The applicant relied on the emphasised sentence in the passage quoted in support of his admissibility submission. However, in so doing, the applicant ignored the qualification carefully made by Lockhart J in the sentence which preceded it, "where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material". 29 Unlike in the present case, in Attorney-General (Northern Territory) v Minister for Aboriginal Affairs the "requisite factual situation" which brought the statute into operation was a nominated state of affairs ("land on which there is a road over which the public has a right of way" - see p 539), not administrative satisfaction as to the existence of that state of affairs. Given the jurisdictional fact for which the relevant statute in Attorney-General (Northern Territory) v Minister for Aboriginal Affairs provided, and the grounds of review pleaded in that case, evidence as to the existence of that state of affairs was admissible on the hearing of the judicial review application. In contrast, the "requisite factual situation" in the present case is, by statute, a state of administrative satisfaction. That satisfaction was reached by reference to the material before the Tribunal and it was for the Tribunal alone to reach that state of satisfaction. 30 For these reasons, the affidavit and its annexures are not admissible. 31 As an alternative, the applicant invited me to take notice, as a matter of common knowledge and as permitted by s 144(1)(a) of the Evidence Act, and further or alternatively, pursuant to s 144(1)(b) of that Act, as verifiable by reference to judgements the authority of which could not be questioned, that the usual practice in the criminal jurisdiction in Queensland was that the trial judge undertook the role of sentencing a person convicted by the jury. That this is so certainly accords with my understanding, and experience when in practice, of the exercise of criminal jurisdiction, Federal and State, in Queensland. 32 However this may be, the purpose of the invitation, no less than with Ms White's affidavit, is to secure a finding as to a state of affairs when the focus of the relevant statutory provision is administrative satisfaction as to a state of affairs. Further, the subject for satisfaction, "another reason", is remote from the state of affairs the subject of the invitation. Yet further but related to that, the finding is sought in support of error grounds which seek to challenge preferences made by the Tribunal as to particular opinions from a range of opinions expressed in the material before it. There is not even a jurisdictional error ground which alleges a failure to make an obvious inquiry about an asserted critical fact namely, the usual practice in relation to the undertaking of sentencing in Queensland. Whether or not there was any jurisdictional error of the kind alleged in the amended originating application must depend on the material before the Tribunal. 33 I turn now to consider the remaining grounds of review. 34 Save for ground 3, the pleaded grounds seek to impeach evidentiary preferences made by the Tribunal in a reasoned decision. It is as well therefore to recall observations made by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), about challenges on the grounds of unreasonableness, irrationality or illogicality to satisfaction criteria based administrative decision-making. Their Honours stated, at [130] - [131]: 130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. [Emphasis added] 35 Long before SZMDS, was R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 (Bott). Mr Bott was a Gallipoli veteran who had sought, unsuccessfully, the reinstatement by an administrative merits review tribunal of a service disability pension in respect of a disability allegedly resulting from his war service. There was contradictory material before the Tribunal as to whether his disability resulted from his war service. In relation to that material, the Tribunal preferred a joint opinion adverse to Mr Bott given by two physicians. He sought a mandamus to compel the tribunal to undertake its duty according to law. In the course of explaining why his application had to be dismissed, Rich, Dixon and McTiernan JJ stated, at 242 - 244: In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. … What the Appeal Tribunal did was to form a judgment that, upon all the material before it, the negative report of independent physicians, selected by the Tribunal for their skill, ought to lead the Tribunal to a determination adverse to the prosecutor. There is no foundation for the issue of a writ of mandamus directed to the Appeal Tribunal. [Emphasis added] 36 Recalling these observations in SZMDS and in Bott, the more submissions in relation to these grounds progressed, the greater the sense of déjà vu I experienced. This is why. 37 In considering afresh whether it was, for the purposes of s 501CA(4)(b)(ii) of the Act, satisfied that there was "another reason" to revoke the cancellation of the applicant's visa, the Tribunal was constrained by s 499 of the Act to take into account factors set out by the Minister in Direction 79. Having regard to its reasons, it is manifest that the Tribunal did this. 38 One of the "primary considerations" specified by the Minister in that direction had two components: 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. 39 It was in the context of addressing these subjects that the Tribunal adverted, at considerable length, [50] - [120], to the oral evidence given before it by the applicant, to earlier accounts given by the applicant about the events of and around the evening in which he was found to have committed the offences charged and to various opinions given by mental health and allied professionals either in the context of sentencing or more recently concerning the risk of re-offending presented by the applicant. 40 The Tribunal's ultimate conclusion, at [120], on the subject of risk was, "I am not satisfied on the state of the evidence, that there is not a risk that the Applicant will not re-offend. Rather, I consider there to be a real, albeit low, risk that the Applicant will commit another sexual offence." The Tribunal's reasons for reaching that conclusion are, at the very least, logically and rationally expressed. Indeed, so to characterise them, while sufficient to dispose of these alleged error grounds, does a disservice to the detailed and, with respect, compelling reasoning offered by the Tribunal. 41 The Tribunal noted, at [56], that the applicant had committed further offences after having been charged with rape - "a break and enter, three minor drugs offences and driving without a licence". It also noted that he had committed these offences while on bail. The consequential conclusion, at [57], that he had demonstrated "a disregard for the law and Court orders" was undoubtedly open. 42 The Tribunal was well seized of the applicant's aspiration, which formed a central feature of his representation as to why his visa cancellation should be revoked, if released from detention. It summarised this, at [63]: 63. If the Applicant is allowed to return to the wider community, he plans to live with his wife, daughter, mother and younger brother, abide by his parole conditions, immediately seek employment, and re-engage with counselling. He has the support of his family. The Applicant speaks with his wife daily and he describes her as loving and supportive. I am confident that Ms N is committed to making sure the Applicant conducts himself as a good husband and father and does not get into any more trouble. I am equally confident that the Applicant has found the prosecution process and his subsequent detention very distressing and he does not want to experience that again. He does not wish to be removed to Afghanistan. [Supporting footnote references omitted] 43 Ultimately, although the Tribunal recognised the beneficial influence of Ms N, the applicant's wife, it found this insufficient of itself to give confidence that the applicant may not reoffend in a serious way. The Tribunal reached this conclusion after a thorough analysis of the material before it. It is worth citing the particular passage, at [119], in full, because it exposes one reason why the Tribunal was not, as the applicant's submissions assumed, obliged to accept uncritically views about the applicant proffered by one of the experts, Professor Freeman: 119. Professor Freeman referred to a maturation process now that the Applicant has a wife and child. The Applicant only stopped smoking marijuana and going out so much because of Ms N's firm stance on both. It was not a change that came from within. Ms N has been put forward as a key protective factor in this regard. She does appear to be able to influence the Applicant's behaviour in terms of keeping his focus on home and family, and she appears to have pro-social values and aspirations. However, it is not realistic for her to be responsible for keeping the Applicant at home or supervising him whenever he goes out. [Emphasis added] The Tribunal's observation, "It was not a change that came from within." was reasonably open on the material before the Tribunal. In itself, it provided a logical, rational basis for discounting Professor Freeman's view about the risk of re-offending presented by the applicant. 44 The Tribunal had the benefit of these assessments of the applicant by the following: (a) Dr Danielle Shumack, senior clinician, forensic and clinical psychologist, of Griffith University's "Griffith Youth Forensic Service", in a presentencing report dated 14 November 2018. (b) Ms Marissa Piat, a psychologist who had provided counselling to the applicant between May and November 2019. She prepared a report dated 6 September 2019 and another dated 11 December 2019. (c) Professor James Freeman who provided a "Forensic Psychology Assessment" dated 9 January 2020 after two interviews of the applicant and related testing (and an addendum of 2 September 2020). (d) Ms Nan Cameron, a psychotherapist who had counselled the applicant, in an undated report. 45 With reference to these reports and the opinions expressed by these persons, the Tribunal commented, at [68], and the fact was, that Dr Shumack's report, "is an independent report that was commissioned by the Court rather than by any of the parties to the criminal proceeding". 46 It was common ground between the various experts, and accepted by the Tribunal, that the applicant's experiences in Pakistan had resulted in his suffering from Post-Traumatic Stress Disorder. That was so even though the Tribunal had reservations about whether one claimed contributor, an alleged homosexual rape of the applicant, had occurred. However, the Tribunal's reasons expose a clear preference for the views expressed by Dr Shumack in relation to the risk of reoffending presented by the applicant. She assessed the applicant as presenting a "low to medium risk" of reoffending. 47 Reading the Tribunal's reasons as a whole, as one must, it is plain that one reason for this preference was an adverse view formed by the Tribunal about the applicant's reliability as an historian with respect to versions of events which he had given to Professor Freeman and Ms Piat. The Tribunal noted, at [38]: 38. At some stage after he was sentenced, the Applicant claimed for the first time that he had been too intoxicated during the rape to recall it. This was reported by a Ms Marissa Piat, psychologist, who started counselling the Applicant in March 2019 and by Professor James Freeman who interviewed him in March (and December) 2019 for the purpose of a risk assessment in the context of seeking revocation of his visa cancellation. [Emphasis added] 48 The applicant, as the Tribunal also noted, at [39], repeated this claim in a statement dated 8 January 2020, attached to his revocation request. In contrast, again as the Tribunal noted, at [44], the applicant's mother, in the material before the Tribunal, had encountered the applicant upon his return home after the offending conduct. She was asked if she had ever found out that the applicant was drinking alcohol and replied, "no". 49 The Tribunal was, at [42], as it was entitled to be, plainly disbelieving as to how a person "who was as paralytically drunk as the Applicant claims he was could have walked out of the car, stood conversing with the victim, got himself back into the car, taken off the victim's shorts, put his body in an appropriate position to have intercourse with her, penetrated her, then stood up and exited the car afterwards". 50 Another reason for the Tribunal's preference in respect of Dr Shumack's evidence, when compared with that given by Professor Freeman and Ms Piat, was the Tribunal's view that Dr Shumack had access to more material, including the trial transcript, than had either Professor Freeman or Ms Piat. This view was said to be erroneous and, as the grounds of review reveal, a source of jurisdictional error. The applicant sought, in ways I have described above and ruled inadmissible, to introduce additional evidence to buttress these grounds. 51 Neither Bott nor SZMDS precludes absolutely a conclusion of jurisdictional error grounded in evidentiary preferences or credibility findings based on false factual premises in the material before an administrative decision-maker such as the Tribunal. But the scope for challenge on judicial review is very confined. In BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 (BZD17), at [36] - [37], the Full Court reviewed a number of pertinent authorities: 36. … Similarly, "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it": SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [34] - [37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court). 37. Finally, as the Minister emphasised, a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the Court does not impermissibly embark upon a review of the merits of a visa applicant's claims: SZMDS at [96] (Crennan and Bell JJ) and SZVAP at [14] - [15] (Flick J). … 52 A feature of the proceeding before the Tribunal, which did not escape the Tribunal's attention (see at [81]), was that neither the transcript of the trial nor the judgement of the Court of Appeal on the appeal against conviction was in the material before the Tribunal. The core function of the Tribunal was that of review, not inquisition: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [18]. There was no formal onus of proof on any party to the review, nor, per force of s 33 of the AAT Act, were formal rules of evidence applicable. Obviously enough, it was nonetheless in the interests of a party seeking a particular outcome to introduce or at least point to in material already before the Tribunal material supporting such an outcome. It was always within the ability of the applicant, if he so chose, to introduce either the trial transcript or Court of Appeal judgement if he considered that so doing might advance his application for the revocation of the visa cancellation. Indeed, given the symmetry as between criminal and administrative review proceedings of his legal representation, he was well-placed to do this. 53 I could not help but think during the course of the applicant's submissions, especially with the endeavour to introduce Ms White's affidavit into evidence, that these error grounds were, with respect, informed by the wisdom of hindsight, having regard to the preferences evident in the reasons of the Tribunal and choices made at and before the Tribunal hearing as to what to place before the Tribunal. 54 As it is, the Tribunal had to undertake its review function as best it could by reference to the material before it. None of the error grounds assert that, in the prevailing circumstances, the Tribunal failed to discharge its statutory function because it did not of its own motion seek to obtain either the complete trial transcript or the judgement of the Court of Appeal. 55 Dr Shumack's report recited that she had been furnished with, amongst other materials, a transcript of proceedings in the District Court before his Honour Judge Lynham on the following days - 12, 15 and 22 September and 3 October 2017. The Tribunal also had before it the transcript of the sentence proceedings in the District Court on 7 December 2018 in respect of the applicant and a co-accused. These disclosed that the sentencing judge was his Honour Judge Devereaux SC. The material before the Tribunal revealed that the imposition of a sentence on the applicant had been postponed pending the outcome of an appeal against conviction. 56 On the material before the Tribunal, and my emphasis is deliberate, it was uncertain as to whether the proceeding before Judge Lynham was the whole of the District Court trial. One would need an understanding of criminal jurisdiction practice to know what else it might be. If it were essential to the review proceeding to address any deficiency of understanding it was for a party to the review to do that. What is clear from the material before the Tribunal, as apparent from the face of the respective reports, is that Dr Shumack had a much greater information base in terms of briefed materials than did Professor Freeman. This is the essential point made by the Tribunal, at [95]: 95. Notably Professor Freeman did not have access to the Schedule of Facts, the Transcript of the trial or any of the witness statements (all of which, Dr Shumack had). Further, and as the Minister correctly submitted, the Tribunal's preference for Dr Shumack's views as to risk was multifactorial. Other factors were: (a) at [98], that, contrary to a view expressed by Professor Freeman, based on his interpretation of Ms Piat's report, the Tribunal did not accept that the applicant had achieved an increased level of understanding into the origin of the offending. (b) at [107] - [108], a perception by the Tribunal, based on emphasised opinions expressed by Professor Freeman in his report and its overall assessment of evidence about the applicant, that he was vulnerable to being influenced by others and that, given his age, his prefrontal cortex was not fully developed and, with that, he was in a class of younger males who experience difficulties recognising and responding appropriately to risk. This perception was well-grounded in the material before the Tribunal. (c) at [105], a misunderstanding on the part of Professor Freeman that the applicant had "progressed from cannabis possession to rape". The Tribunal observed, "It is not the case that the Applicant progressed from cannabis possession to rape. He was found in possession of cannabis after the rapes and he explained his drug use on the basis of anxiety because he had been charged with these offences." This conclusion was reasonably open to the Tribunal to form. (d) at [112], contrary to Professor Freeman's view, the Tribunal did not accept that the applicant had been "swept up" in the course of events in the night he offended. The Tribunal considered, given the, by then, undisputed fact that it was the applicant that first raped the victim, that the he had not been "swept up" that evening. This was a view reasonably open to the Tribunal to form. 57 As it highlighted in analysing Professor Freeman's evidence, the Tribunal did not accept views expressed by Ms Piat which had informed Professor Freeman in furnishing his report. The Tribunal's reasons, at [79] - [83], for not accepting Ms Piat's views were closely, even meticulously, reasoned. It would do the Tribunal less than justice not to reproduce them in full. 79. I have some concerns with Ms Piat's report. First, in the hearing, the Applicant denied having told Ms Piat that he believed the victim was consenting because he had seen her have consensual sex with someone else. I accept the Applicant's denial which is consistent with his evidence that he had never encountered the victim before. Accordingly, it is not the case that a contributing factor, being confusion about consent, has now been remedied. 80. Second, it is not apparent what Ms Piat meant by "diminishing view of women" due to "culture shock", and whether this has been remedied. If the Applicant held racist, sexist or other inappropriate views about women that were supportive of rape, and Ms Piat had helped him remedy those I would expect that to be made plain in her report and for the Applicant to give that evidence. I note that the Applicant's wife said the applicant has many female friends at school and that he had always observed him to be well-mannered and respectful to woman within their extended family and friends. Based on Ms N's observations, it does not appear that the Applicant held a diminishing view of certain women in certain circumstances. I further note that the victim was not a school friend, other friend or relative. 81. Third, the evidence does not support the Applicant having been influenced to commit the offences by M (or anyone else). The Applicant raped the victim first. There was no evidence from any of the people who were present in the car and at the rapes to the effect that the Applicant was pressured or manipulated into committing the offence. The trial was transcribed and there is an appeal judgment that is in the public domain. None of that evidence was filed in these proceedings. If there is evidence in any of that material that tends to show that the Applicant was influenced or pressured into committing the offences, it is not before the Tribunal. Further, the Applicant cannot give such evidence while he maintains that he has no memory of the journey to the isolated location and the offending. 82. Further, I am not convinced that the Applicant really does feel much empathy for the victim. Despite claiming to know the horror or rape, including shame and self-blame, from his own experience, he has not made any effort to find out if there is anything he can do to alleviate some of the harm he has done. It is not known whether the victim would want to be contacted or whether the Applicant is allowed to contact her, but the fact is he has not enquired. He has not asked any of the counsellors he has spoken with if expressing remorse could help the victim, and he has not asked his lawyer if he is permitted to express his remorse to her. 83. Without intending any criticism of Ms Piat, because she could only work with the information provided to her, I am not satisfied that she even came close to identifying what it was about the Applicant's character or personality that predisposed him to rape the victim in the circumstances that existed, and therefore what his rehabilitative needs were. Accordingly, I am not satisfied that those needs have been addressed. [footnote references omitted, emphasis in original] This critique is relentlessly logical and one reasonably open on the material before the Tribunal. 58 The Tribunal was under no obligation to accept the views of Professor Freeman or those expressed by Ms Piat. Neither was it under any obligation to accept the views expressed by Dr Shumack. It is just that Dr Shumack's view as to the existence of a risk of reoffending, albeit low to medium, better accorded with the Tribunal's assessment of the applicant and of the nature of his offending conduct. For all their particularity, none of the grounds under present consideration amount to anything more than a solicitation for the Court to undertake, under the guise of judicial review, merits review. None of the confined bases highlighted in the passage from BZD17, quoted above, upon which it is open to a court in judicial review to quash for jurisdictional error an administrative decision based on factual evaluation, is made out. 59 One of the cases cited with approval, and by way of example, in this extract from BZD17 is SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113. In that case and after a discussion of authority and academic commentary, I observed, at [37], "the adjectives 'ignorant', 'arbitrary' and 'perverse' aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document". In that case, the false factual premise was evident in the material before the Tribunal. That is not this case. Further, and at the risk of repetition, the Tribunal's reasons for discounting Professor Freeman's views, and those of Ms Piat for that matter, were multi-factorial. 60 For these reasons, grounds 1, 2 and 5 should be dismissed. 61 As to ground 3, the applicant submitted that, "the Tribunal was unable to reach a lawful conclusion about whether or not the applicant may be identified as having returned from a Western country without having considered Mr Ghulam's evidence". 62 It is necessary to detail the context in which this ground and submission falls for consideration. 63 Subsection 501CA(4) of the Act is silent on the subject of non-refoulement. "Non-refoulement", as the Tribunal correctly recognised, is a term derived from Art 33 of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (collectively, Refugees Convention). The Tribunal set out the terms of Art 33 in its reasons. 64 Within Direction 79, [14(3)] provided: (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled). Paragraph 14(1) of Direction 79 accurately summarised the essence of non-refoulement, a "non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm". The obligation is subject to a qualification found in Art 33(2) of the Refugees Convention, "The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country." 65 A Mr Hassan Ghulam made a statutory declaration which formed part of the material placed before the Tribunal on behalf of the applicant in support of the revocation of the cancellation of his visa. Mr Ghulam had been born in Afghanistan in 1949 and lived there until around 1971. Thus, by the time of the hearing before the Tribunal, almost half a century had elapsed since Mr Ghulam had direct personal experience of life and conditions in that country. He had lived in Australia since 1986. In the interval between his leaving Afghanistan and arriving in Australia, Mr Ghulam lived in Europe and Pakistan. For about five years during that period, Mr Ghulam had worked for a non-government organisation, the Austrian Relief Committee for Afghan Refugees. After his arrival in Australia, between 2000 and 2014, Mr Ghulam "worked in various positions assisting Afghan refugees and asylum seekers in Australia, specifically unaccompanied youth". He first came to know the applicant when the applicant was on bail, pending the trial of his rape charges. 66 It is obvious from Mr Ghulam's statement that he is well aware of the applicant's personal and family circumstances. Mr Ghulam also makes the observation that the applicant speaks with a "Quetta dialect" and distinguishes this from the Dari spoken by those who have lived in Afghanistan. He likewise makes an observation as to the applicant's confident manner of walking, which distinguishes him from the more humble manner of walking of those who have grown up in Afghanistan. Drawing on his observations and knowledge of the applicant, Mr Ghulam opines that he would be easily identifiable in Afghanistan as an outsider and thus at risk from the Taliban. 67 A consideration will be "relevant" in the sense that an omission to advert to it may attend a resultant administrative decision made under statute with jurisdictional error only if the statute either expressly or by necessary implication makes that consideration relevant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 - 40. The effect of s 499 of the Act was that Direction 79 and, presently materially, the statements about non-refoulement constituted, in this sense, a "relevant consideration". The Tribunal's reasons evidence that this particular consideration was taken into account. Mr Ghulam's statement was not, in the sense described, a "relevant consideration". 68 Another "relevant consideration", in the sense described, was the representation made by the applicant as to why the cancellation of his visa ought to be revoked. Jurisdictional error may also be found in a failure by an administrative decision-maker to advert to an essential element or "integer" of such a representation: see, by analogy, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. Such an error might also be characterised as a constructive failure to exercise the statutory power or a denial of procedural fairness. 69 The Tribunal's reasons, at [150] - [151], also disclose that it did not commit any such error: 150. I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to Afghanistan in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration. The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application. 151. The Applicant claims that, if removed to Afghanistan, he will be at risk of the harm on the following grounds: • as a practising Shia Muslim; • as a returnee from a Western country; • as a member of a particular social group, being persons suffering from a mental illness, he will suffer discrimination. [Footnote references omitted] 70 The Tribunal then proceeded to address each of these claims. It found that, in the circumstances, Art 33(1) of the Refugees convention was satisfied in relation to the applicant. The Tribunal then proceeded to address Article 33(2). Having addressed pertinent authorities and the applicant's circumstances, the Tribunal concluded, at [163], that the risk posed to the Australian community by the applicant was "present and serious" albeit low. The Tribunal further considered that, even if that conclusion were incorrect, non-refoulement was not a determinative factor but rather one to consider in balance and would be more particularly addressed in the event that the applicant applied for a protection visa. 71 In none of this did the Tribunal refer to Mr Ghulam by name. The Tribunal did, however, make it explicit in the exhibit list which, as "Annexure A", was part of its reasons that Mr Ghulam's statement was included in the material before it (as Exhibit No A3). The Tribunal stated (at [4]), "The Tribunal also received the written evidence that is listed in the attached exhibit list, marked 'Annexure A' and written submissions from both parties on a specific issue relating to non-refoulement". 72 The applicant "as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal": Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, at [67], per Gummow J. In seeking to discharge this onus, the applicant focussed on [156] of the Tribunal's reasons, where the Tribunal stated: 156. I find it unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life. For one, he speaks multiple regional languages including Dari, Pashtu, Hazaragi, Bilochi and Irani. He does not claim to regularly drink alcohol, have tattoos or piercings, speak with an accent that is noticeably Australian, have a public Facebook page or anything else that could possibly mark him as western. I am not satisfied that there is more than a remote possibility that the Applicant would be the target of serious harm or that his life would be threatened on account of him having lived in a Western country. [Footnote reference omitted, emphasis added] 73 The emphasised part of [156] was said by the applicant to manifest jurisdictional error, because it contained no reference to the applicant's manner of walking, as described by Mr Ghulam. The Minister, on the other hand, submitted that this paragraph manifested the exact reverse, an active intellectual engagement with the claim as made by the applicant. Notably, the Tribunal returned later in its reasons, at [180] - [181], to reflect on difficulties which it acknowledged that the applicant would face if returned to Afghanistan. Amongst other things, the Tribunal there stated: The Applicant has never lived in Afghanistan although he was part of an Afghan community in Australia. His religion is commonly practised in Afghanistan. I point these matters out because although the Applicant has never lived in Afghanistan and is completely unfamiliar with that country, he is not completely unfamiliar with the culture or religious practices. 74 The applicant's submission exhibits the vice identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, by particular approving reference to the Full Court's judgement in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. The reasons of an administrator, and thus the Tribunal, are not to be read narrowly and with an eye for error. The source of the Tribunal's finding as to the languages spoken by the applicant is, as the Tribunal's related footnote reference in [156] confirms, [34] of the applicant's lengthy statutory declaration (Exhibit G1, Section 501 G-documents, G2, p 79, [34]). 75 The applicant does not claim in that declaration to speak any of these languages with a particular accent. Nor, for that matter, does he there claim to walk in a different manner to a native-born Afghani, nor even to have an apprehension about that, based on his declared association with Mr Ghulam, whom he describes as a leader in the local Afghan community. The Tribunal's finding as to unlikelihood in the sentence which precedes the reference to the languages spoken by the applicant is significant, "unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life". Though the Tribunal does not expressly refer to Mr Ghulam as one supporting source, the finding as to the applicant's being more likely to be identified with having spent time in a Western country as opposed to somewhere closer like Pakistan is consistent with Mr Ghulam's reference to the applicant speaking with a "Quetta dialect". Quetta is where the applicant in his declaration said he had been born, lived and worked prior to coming to Australia. Thus, not only is the Tribunal's finding as to relative likelihoods supported by the material before it but also the way that finding is expressed is inconsistent with an absence of adverting to Mr Ghulam's statement. In any event, the absence of active intellectual engagement which might sound in jurisdictional error is with the claim as made: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, at [46]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [92]. The Tribunal has addressed the claim. In so doing, it was not required to refer to each and every detail found in the material before it. To require that would render the function of the merits review undertaken by the Tribunal in relation to the myriad of cases that come before it impossible. 76 None of the foregoing means that Mr Ghulam's statement was irrelevant in the sense that the Tribunal was obliged not to take it into account. It was permissible to take it into account but the extent to which the Tribunal did that and, if it did, the weight it gave to the statements made by Mr Ghulam was a matter for the Tribunal. 77 For these reasons, ground 3 must be dismissed. 78 It follows that the application must be dismissed. Costs must follow the event. 79 In the circumstances, I consider that the interests of justice require that I also make these observations. The Tribunal made a point of expressly commending those who acted for the applicant, who continued so to do in this Court, for the quality of the case presented for him. I respectfully agree with that observation. The Tribunal's reasons disclose it was in no doubt about the singular impact which the applicant's being returned to Afghanistan would have not just on him but also on his wife, infant daughter, mother, sibling and wider family. However, jurisdictional error is not to be found in disappointment as to an absence of success on the merits of a well presented case. Nor is it to be found in the false wisdom of hindsight as to how, at an evidentiary level, that case might perhaps have been even better presented. As the Tribunal's reasons logically, rationally, and eloquently, explain, the particular assessment which the Tribunal came to make in relation to risk was underpinned by the varying accounts which the applicant himself had given over time about the evening in question and also by the applicant's conduct while on bail in respect of these serious offences. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.