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[2019] FCA 1301
Federal Court of Australia
2019-02-11
Mr J, Burley J
Original judgment source is linked above.
4.1 Ground 1: Taking into account irrelevant considerations 28 In ground 1, the applicant contends that the Tribunal took into account irrelevant considerations and as a result fell into jurisdictional error. The application initially identified 5 different bases for the alleged error, however, in oral submissions the applicant abandoned the last of these. 29 The relevant principles going to jurisdictional error arising by reason of taking into account irrelevant considerations and failing to take into account relevant considerations are well-known, and were not in dispute. 30 It is necessary to identify a consideration a decision-maker is bound to take into account or bound not to take into account. Such considerations are to be identified by reference to the subject matter, scope or purpose of the relevant Act; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 - 40 (per Mason J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73] - [74] (per McHugh, Gummow and Hayne JJ). The inquiry is to be conducted by reference to the Act, rather than the particular facts of the case, that the decision-maker is called upon to consider; Yusuf at [73]. 31 The requirements of s 501(6)(c) of the Act are broad, and mandate that in considering whether a person does not pass the character test, regard should be had to the person's past and present criminal and/or general conduct. Annex A of Direction 65 provides further guidance, emphasising that a person may be refused a visa if the decision-maker reasonably suspects that the person does not pass the character test (section 1(1)), and, in the case of persons being considered under s 501(6), the decision-maker must determine "on the basis of all relevant information" (section 1(2)). Paragraph 5 of section 2 amplifies the breadth of the enquiry by setting out a broad evaluative process, reiterating that "all the relevant circumstances for the particular case are to be taken into account to obtain a complete picture of the person's character" (paragraph 5(3)). A person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of good character (paragraph 5(4)). Furthermore, paragraph 5.2(1) provides that the past and present general conduct provision "allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence". 32 The discretion to be exercised under s 501(1) of the Act, assuming that a decision-maker concludes that the applicant fails the character test, is also governed by Direction 65. The principles set out in Direction 65 identify mandatory relevant considerations that must be taken into account. The primary considerations include the protection of the Australian community from criminal or other serious conduct. Considerations to be taken into account in this regard include the nature and seriousness of the non-citizen's conduct to date, and the risk to the Australian community should the non-citizen commit further offences (paragraph 11.1). Whilst Direction 65 identifies mandatory considerations, it does not expressly purport to confine considerations that may be taken into account in considering the exercise of the discretion.
4.1.1 Particulars (i) and (iv) 33 The applicant contends that at [27], [114] and [115], the Tribunal assessed the applicant's criminality, and therefore the question of his character, on a speculative assumption that he was selling drugs, an assumption that was not supported by any evidence, was not the subject of any charges, was not suggested by the police, and in circumstances where the Tribunal itself accepted that the applicant's real issues lay with his unresolved addiction to opioids. The Minister disputes this characterisation of the reasons of the Tribunal, and contends that even if it is correct that the Tribunal made a finding that the applicant engaged in his criminal conduct to obtain drugs otherwise than for personal use, that does not sound in jurisdictional error as consideration of the material within the NSW Police Facts Sheet was not an irrelevant consideration that the Tribunal was necessarily obliged by the statutory framework not to take into account. Additionally, the finding was open based on the material before the Tribunal. 34 For the following reasons I accept with the Minister's submissions. 35 The first focus is [27] of the decision, which is located in the part of the reasons that applies the character test, and concerns the application of s 501(6)(c). Accordingly, the considerations the decision-maker must take into account, and the considerations that the decision-maker may not take into account, are to be drawn from the legislative scheme represented in s 501(6) of the Act and the relevant parts of Annex A of Direction 65. As noted above at [31], paragraph 5.2(1) of Annex A specifically obliges the decision-maker to have regard to criminal and general conduct where convictions may not have been recorded, or where the person's conduct may not have constituted a criminal offence. 36 The Tribunal had before it the Facts Sheet that set out the circumstances of the applicant's offending in 2018. There was no challenge by the applicant to the accuracy of that Facts Sheet, and its contents were plainly something that the Tribunal was entitled to take into account. The Tribunal's reasons included a detailed summary of the contents of the Facts Sheet, which is set out earlier in these reasons at [15]. Amongst the information contained in it are the following matters: (1) Police searches located: (a) within the applicant's wallet, 8 prescription stickers for 'Fentanyl 100mcg - 5 patches' issued by a variety of doctors in different names; (b) within his wallet on another occasion, a further 5 prescription stickers in the name of the applicant for Fentanyl; (c) a further 6 stickers inside a suitcase in the applicant's room; and (d) within the vehicle in which he was apprehended, numerous pharmacy receipts and documentation in relation to obtaining Fentanyl in his name; (2) The prescriptions state that the patient must only take one patch every two days and within certain dates; (3) The applicant had received "upwards of 40 patches" of which the police were aware; (4) The applicant said to the police that he worked as a labourer with "no current injuries"; (5) The applicant admitted obtaining the prohibited drugs under false representation. 37 Having regard to this evidence, it is difficult to see how the Tribunal's statement in [27], to the effect that one might wonder what the ultimate end use the applicant sought to make of the drugs, was an irrelevant consideration. Plainly enough the broad matters identified under s 501(6)(c), having regard to paragraph 5 of Annex A to Direction 65, mandate that the decision-maker consider both criminal and non-criminal activity. In postulating that the amount of drugs taken by the applicant may not have been for his own end use (in circumstances where it appeared to the Tribunal that he did not have an injury), the Tribunal was entitled to take into account the contents of the Facts Sheet and consider its significance. Certainly, nothing within the scope or content of the legislative scheme enables a conclusion to be drawn that consideration of the drugs' end use, or the Facts Sheet, was forbidden, and accordingly irrelevant. 38 A similar conclusion may be reached in relation to the passages at [114] and [115], although the Tribunal's consideration of the matter has by this point crystallised into a positive finding that the drugs seized were not for the sole use of the applicant. It will be recalled that [115] is in that part of the Tribunal's reasoning directed towards the exercise of its discretion under s 501(1). It says (emphasis added): Those search warrant results yielded serious and significant evidence against both the Applicant and his co-offender. The quantities seized or identified were not for the sole use of one person. This is clear and undeniable from the abovementioned Facts Sheet. 39 As I have noted, Direction 65 sets out matters which a decision-maker must take into account in the exercise of the discretion under s 501(1) of the Act. The broad discretion conferred by the legislative scheme required the Tribunal to give consideration to the nature and seriousness of the offences and the general conduct of the applicant. It was not irrelevant for it to consider the Facts Sheet and draw conclusions about the statements therein. Put another way, it cannot be said that the Tribunal had regard to an irrelevant consideration by considering these matters. To the contrary, the broad scope of the discretion as elucidated in Direction 65 indicates that consideration of the nature of the criminal or other conduct of the applicant is within the purview of the legislative scheme. The Tribunal was not forbidden from considering it or, to put it more clumsily, the subject was not a mandatory irrelevant consideration. 40 During the course of argument, the applicant appeared to characterise the error on the part of the Tribunal as being a misconstruction of the Facts Sheets, and an error because the information contained therein does not support the proposition that the applicant obtained the fentanyl for the use of others. The Minister accepted that this contention may give rise to a ground of review to the effect that there was an absence of evidence to support the Tribunal's reasoning, or that the decision of the Tribunal may be legally unreasonable, rather than in the terms of ground 1 (not conceding that such a ground might succeed). This led to an application on the part of the applicant for leave to amend the grounds of review, and a timetable for the provision of further written submissions. As I have noted, I granted that leave, which gave rise to ground (3) in the present application, which I address later in these reasons.
4.1.2 Particular (ii) 41 In the second particular, the applicant contends that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration when it said at [31] (emphasis added): When confronted with the possible reality of his visa being refused, the Applicant engaged medical expertise in an effort to explain the reasons behind his conduct in inducing medical professionals to wrongly prescribe or dispense drugs to him. According to the Applicant: "Part of the reason for some of my offences is that I was self treating for my back pain, which is made worse when I go to work. I attach a report from Dr [name redacted] dated 15 November 2016 which notes the medical problems with my back… When I was outside Immigration Detention I obtained Fentanyl Patches to stop the pain, but I did that too much. I also took other drugs to stop the pain." 42 The applicant submits that the Tribunal misunderstood that it was appropriate and desirable for an applicant to put on an explanation for his criminal conduct, which in this case was that he was self-treating for back pain. Accordingly, the Tribunal wrongly considered the provision of an explanation for his conduct was for nefarious purposes. 43 In my view this aspect of ground 1 is without merit. At [31] the Tribunal was addressing the explanation given by the applicant for his conduct. In the next paragraph, the Tribunal goes on to set out a number of reasons why it considers there to be "significant difficulties" with the explanation. One of those is that the claim to suffer back pain was inconsistent with other evidence to the effect that he had no injuries. The Tribunal did not take into account an irrelevant consideration in questioning whether the explanation offered by the applicant was not credible.
4.1.3 Particular (iii) 44 In the third particular of ground 1, the applicant contends that in taking into account an adverse finding of credit of the RRT six years earlier, the Tribunal at [33] and [127] - [130] took into account an irrelevant consideration. This aspect of ground 1 is appropriately to be considered together with the second particular of ground 2, which for convenience I do now. 45 The reasoning process of the Tribunal in this regard is set out at [19] above. Plainly enough it is within the discretion of the Tribunal to take into account matters of credit. The applicant submits that by taking into account the credit findings of the RRT, the Tribunal either took into account a mandatory irrelevant consideration, or misconceived its statutory function, having regard to the scope of Direction 65 at paragraph 11.1.1(1)(h), which provides that in considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to "whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending". 46 In my view, the Tribunal did neither. Nothing in the scheme of s 501 supports the proposition that an applicant's prior immigration history, or prior statements that he or she makes, are irrelevant in the sense of being forbidden to be taken into account, as the ground of taking into account an mandatory irrelevant consideration would require. Furthermore, the language of consideration (h) in paragraph 11.1.1(1) of Direction 65 is such that the decision-maker is obliged to consider whether false or misleading information has been provided to the department. There may be questions about the weight that may be attached where the prior statements were made some 6 years earlier and in circumstances remote from the questions before the Tribunal, but the question of weight is a matter for the Tribunal and does not sound in jurisdictional error.
4.2 Ground (2): Tribunal misconceived its statutory function 47 In ground 2, the applicant contends that the Tribunal misconceived its statutory function when assessing whether the applicant came within the provisions of ss 501(6)(c) and (d) of the Act. In argument, the basis for the error was clarified as being that the Tribunal failed to take into account mandatory relevant considerations as set out in Direction 65. The ground as pleaded includes four separate particulars. At the hearing the applicant abandoned two. The remaining bases for the application, as further developed during the course of oral argument, are addressed below. 48 In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Full Court said at [34] (emphasis added): The fact that a matter is not referred to in the Tribunal's reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal's reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52]. See also HSKJ at [43] - [47]. 49 In Minister for Home Affairs v Ogawa [2019] FCAFC 98, Davies, Rangiah and Steward JJ said at [103]: There is a distinction between the making of a decision by the Minister and the written notice given under s 501G(1) of the Act setting out his or her reasons: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at [40]. The distinction is that the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker: He at [79]. It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. It may also be observed that the Minister's obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker's mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]: 76 The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister's reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.
4.2.1 First particular 50 The applicant first contends that the Tribunal failed, in accordance with its obligation under s 499 of the Act, to consider the mandatory consideration set out in Direction 65 at paragraph 11.1.1(e), which provides: In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to: ... (e) The sentence imposed by the courts for a crime or crimes. 51 He submits that this may be seen from the content of [111] of the decision, set out at [23] above, where it is apparent that the Tribunal did not consider this sub-paragraph to be relevant to the present matter. 52 The Minister rightly accepts that s 499(2A) of the Act requires the Tribunal to comply with Direction 65, but submits that what is required by compliance is "another question". He accepts that there is no express reference to consideration (e) in the course of the Tribunal's analysis of the factors in paragraph 11.1.1, but submits that earlier in the decision at [13] and [24], in a different context, the Tribunal refers to the nature and severity of the criminal conduct, and it may be inferred in reading the balance of the reasons that the Tribunal determined that despite this, the other factors set out at [111] - [130] were such that a finding that the conduct was serious was justified. 53 At [13], the Tribunal lists the criminal offences and the penalties set out at [14] above. At [24], the Minister notes that no violence was involved in the Applicant's offending and then says: ...Be that as it may, his offending has been dealt with via numerous impositions of fines, disqualification from driving and the recording of a conviction but with no further punishment. What cannot be ignored is the frequency of the Applicant's offending. He has been in this country since mid-2012. As at the end of last year, he had been a member of the Australian community for something in the order of 78 months. In that time, his offending conduct has caused him to be dealt with by lawful authority on 14 April, 30 April and 23 July 2014, plus 28 February and 21 June 2017, plus 16 May and 10 August 2018. This comprises seven episodes across 78 months, which equates to roughly one sentencing episode every 11 months during his time in this country. 54 I have noted earlier that the decision is divided into two parts. The first concerns the character test and the second the exercise of the discretion under s 501(1) of the Act. The paragraphs relied upon are in the first part. 55 In the present case, the question is whether it may properly be inferred that the Tribunal took account of consideration (e) of paragraph 11.1.1 of Direction 65, when having regard to Primary Consideration A, and the nature and seriousness of the applicant's conduct to date. In my view it cannot. 56 First, in [111] the list of factors to be considered by the Tribunal to be relevant does not include factor (e). This is not a promising start. 57 Secondly, the balance of [111] - [130] sets out comprehensively the reasoning of the Tribunal in relation to its consideration of the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, but does not expressly or implicitly refer to the sentences imposed by the court. It refers to factor (d) and concludes that the conduct that forms the basis for the failure of the character test supports a finding that the applicant's offending is to be considered serious. It then considers that having regard to the frequency and nature of the applicant's offending (factor (f)), including multiple frauds upon medical professionals, the applicant's conduct should be viewed seriously. After referring to the Facts Sheet and making the findings at [114] and [115] (to which I have already referred), the Tribunal concludes that the frequency of offending and its trend of increasing seriousness is a factor pointing to the seriousness of his unlawful conduct to date ([118], [121]). The Tribunal also considers the cumulative effect of the applicant's offending in factor (g), and reaches the same conclusion (at [126]). Next, the Tribunal considers that by reason of the provision by the applicant of false or misleading information to the department (factor (h)) in the course of his application for refugee status, it should be concluded that factor (h) strongly supports the exercise of the discretion to refuse the visa. 58 Thirdly, the overall structure of the decision is such that the Tribunal (at considerable length) addressed all of the factors it considered relevant first to the question of the character test and next the exercise of discretion. It is apparent that the Tribunal considered these aspects separately. Whilst the Tribunal referenced the sentences received by the applicant in [13] and [24], that was in the introductory and character test application parts of the decision, rather than where the Tribunal considered the exercise of its discretion under s 501(1). It is evident from the structure of the reasoning at [111] - [130] that the Tribunal did not have regard to the applicant's sentences where paragraph 11.1.1 of Direction 65 stipulated it must, specifically in its consideration of the nature and seriousness of the applicant's criminal offending or other serious conduct to date. 59 Finally, in the present case, one would have expected explicit reference to be made to the sentences given, because the penalties imposed were modest. There was no custodial sentence and in one instance - in relation to his offence of entering enclosed land without lawful excuse in 2017 - the applicant received a conviction with no penalty. For the balance of the offences, including the August 2018 crimes of obtaining prohibited drugs from an authorised person with intent to deceive, the applicant was sentenced to pay fines ranging from $800 for the April 2013 offence, to $110 for each of the August 2018 offences. Yet nowhere in the balancing exercise conducted by the Tribunal is reference made to these sentences. One would have expected them to be raised, not least because the severity of the sentences imposed might be considered to stand in contrast to the conclusion that the Tribunal reached as to the seriousness of the offences. Furthermore, the language used by the Tribunal in [126] additionally suggests that, contrary to the submission advanced by the Minister, in fact the Tribunal did not take into account consideration (e). There it said (emphasis added): The cumulative effect of the Applicant's repeated offending can be seen in (1) its increasing sophistication and thus seriousness and (2) the stark reality that whatever punishment or sentence he received for his offending in 2014 had no deterrent effect...". 60 I am not satisfied that the words "whatever punishment or sentence he received..." convey consideration of the actual sentences that had been imposed on the applicant. 61 In the result, I do not accept the submission advanced by the Minister that from the references in [13] and [24] it may be inferred that, in the balance of the decision, the Tribunal took into account mandatory consideration 11.1.1(e). A fair reading of the whole of the decision does not bear this construction. 62 The Minister accepts that in the event that it is concluded that the Tribunal failed to take into account consideration (e), then it must follow that a jurisdictional error has been established. Accordingly this ground of review succeeds.
4.2.2 Second particular 63 The second particular relied upon is that the Tribunal misconceived its statutory function when it took the view that findings of credit made by the RRT were relevant in the consideration of the credit of the applicant. For substantially the reasons set out in relation to particular (iii) of ground (1), this ground must also be rejected.
4.3 Ground (3) - unreasonable 64 In ground 3, the applicant contends that the reasoning of the Tribunal was legally unreasonable insofar as it found that the applicant, when committing the offences identified in the police Facts Sheet, was involved in more than satisfying his own drug addiction. 65 The principles concerning legal unreasonableness are uncontroversial. Concepts of legal unreasonableness applied to fact-finding are ultimately referable to the broader principles delineating the proper limits of the exercise of statutory power, which are subject to an implied constraint that they be exercised reasonably; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] - [30] [63], [88]. Reasonableness is informed by the subject matter, scope and purpose of the legislation in question; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [12], [13] (Keifel CJ). Recently in Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court (Reeves, O'Callaghan and Thawley JJ) explained at [61] that: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. 66 Having regard to this guiding principle, the question of whether a conclusion of legal unreasonableness may be drawn is not capable of being reduced to a single formula, but depends on the particular circumstances of the case, having regard to guidance provided by cases such SZVFW and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ). 67 In the present case, the applicant contends that, having regard to the reasoning set out in [27], [114] and [115], the "Tribunal allowed itself to assess the applicant's criminality and therefore ultimately the question of his character, on the speculative assumption that he was selling drugs..." He submits that this conclusion was legally unreasonable, because the Tribunal accepted at [120] that the applicant's real issues lay with his addiction to opioids. 68 I have summarised above the matters that may be drawn from the police Facts Sheet. The inference drawn by the Tribunal at [115] was that the quantities seized or identified were not for the sole use of one person. Further, at [120] the Tribunal finds that the applicant's "unresolved addiction issues have now caused him to escalate his conduct from the unlawful obtaining of those substances into a more commercially derived modality of supplying such substances unlawfully". The first respondent argues that in finding so, the Tribunal assessed the applicant's criminality on the basis that he was selling drugs where there was no evidence of that and where the police had not suggested that. However, the police said in the Facts Sheet that a search of the applicant's house, which uncovered the drugs the subject of one possession conviction, was related to "an investigation into the supply of the prohibited drug, Fentanyl, from the premises". While a "supply" does not necessarily mean that that money was involved, it was open to the Tribunal conclude that this evidence, in combination with the relatively large amount of prohibited drugs found by the police, meant that the applicant's conduct had escalated to commercial supply of prohibited drugs. Further, the fact that the applicant was only convicted of possession does not equate to a positive finding in the evidence that the applicant did not supply prohibited drugs, and so the Tribunal's decision could not be said to be illogical or irrational on that basis. Paragraph [115] of the decision was directed to consideration of the nature and seriousness of the applicant's conduct. As considered above at [31] - [39], the decision-maker is left with a broad range of matters to be taken into account when determining this subject. The Full Court's decision in Stretton makes it clear that the correct approach is to assess whether the Tribunal's decision "should be characterised as one which was not a reasonable and rational exercise of the power made in furtherance of the protection of the Australian community": see [21] - [22] per Allsop CJ. It was not unreasonable or irrational to consider the quantity of drugs taken and their potential uses when considering this matter. Nor can it be said that the inferences drawn from the materials available to the Tribunal were illogical or unreasonable. This ground must be dismissed.
BTZ19
Minister for Home Affairs
[2019] AATA 641
(2001) 206 CLR 323
(2000) 96 FCR 533
(2012) 206 FCR 25
(2003) 236 FCR 593
[2001] HCA 30