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

Analysis 19 I am not persuaded that the applicant has established jurisdictional error in the Tribunal's decision. 20 First, I am not persuaded that the Tribunal conflated paras 13.1.1(1)(d) and (e) and thereby misunderstood the frequency criterion. 21 Paragraph 13.1.1(1) sets out a number of factors (including the frequency criterion) to which the decision-maker must have regard when considering the nature and seriousness of the non-citizen's conduct "to date". The nature and seriousness of the non-citizen's conduct "to date" is but one consideration comprising the so-called "primary considerations" involved in deciding whether the mandatory cancellation of the non-citizen's visa should be revoked - namely, the protection of the Australian community from criminal or other serious conduct. The Tribunal referred to this as Primary Consideration A. 22 The frequency criterion has two elements: the frequency of the non-citizen's offending and whether, in respect of that offending, there is any trend of increasing seriousness. The Tribunal's reference to the sentence criterion, when discussing the frequency criterion, reflects no more than a generally expressed observation that a trend of increasing seriousness is likely to be discernible from the sentences that courts have imposed on the non-citizen in respect of his or her offending. That observation is unexceptionable. In substance, the Tribunal reasoned that if there is a trend of increasing seriousness of offending, one would expect this to be manifest in the sentences imposed by courts. That reasoning is also unexceptionable. Recognition of such a relationship is not conflation. 23 Secondly, I am not persuaded that the Tribunal misunderstood and misapplied the frequency criterion. On this limb of his case, the applicant submits that, properly construed, the "frequency" of offending referred to in para 13.1.1(1)(e) is confined to a consideration of frequency over time. According to the applicant, it is inapposite to refer to the "frequency" of offending by reference to one event - here, the incident involving the applicant's wife, mother-in-law and brother-in-law. This, the applicant says, reflects the normal meaning of the word "frequency", which is confirmed by the context provided by para 13.1.1(1)(e) itself when it refers to any "trend of increasing seriousness" of offending. The applicant submits that the word "trend" can only be understood with reference to a period or multiple periods of time, not one event in time, and that "frequency" has a complementary meaning. 24 There can be no doubt that para 13.1.1(1)(e) extends to "frequency" over time. The question raised is whether its meaning in para 13.1.1(1)(e) is limited to that understanding? The Minister submits, with some cogency, that para 13.1.1(1)(e) should be understood as directing the decision-maker's attention to the non-citizen's pattern of offending. Further, I note that the dictionary meaning of "frequency" includes "happening or occurring at short intervals": Macquarie Concise Dictionary (Macquarie Dictionary Publishers, subscription service) https://www.macquariedictionary.com.au viewed 8 July 2020, which would certainly accommodate, in the present case, the multiple and separate assaults arising out of the one incident. 25 Ultimately, however, the debate presented by this aspect of the applicant's case is arid. If it be the case that the scope of para 13.1.1(1)(e) is as confined as the applicant would have it, then there can be no doubt that the Tribunal made findings specifically addressing that scope. The Tribunal correctly identified that the frequency criterion, as expressed through para 13.1.1(1)(e), has two elements. As to the first element (frequency), the Tribunal found (at [46]), that "there is no element of frequency in [the applicant's] offending per se". At [47], the Tribunal said the applicant's offending was an identifiable "bad phase" of offending in 2018 that was "not necessarily frequent offending". In making these observations, the Tribunal was addressing "frequency" in the sense in which, the applicant says, para 13.1.1(1)(e) uses the term. Plainly, it was making specific findings thereon. In doing so, it fulfilled its obligation under para 13.1.1(1) to "have regard" to this factor, understood as the applicant contends. 26 However, as is clear, the Tribunal immediately noted that the applicant's offending involved multiple victims and thus multiple offences. The applicant's offences of violence against his wife, his mother-in-law and his brother-in-law were separate offences attracting separate convictions and separate punishment by the imposition of separate custodial sentences, albeit that the sentences were ordered to be served concurrently and the offences arose out of one, overall occasion of offending. This part of the Tribunal's reasons shows that it grappled with the meaning of "frequency" and gave active consideration to the fact that the word has different dimensions. This explains the use by the Tribunal of "per se" and "necessarily" in the findings on which the applicant relies. The Tribunal's consideration of these dimensions was apposite and relevant. It cannot be said that, by simply undertaking this consideration, it erred. 27 Moreover, although para 13.1.1(1)(e) requires a decision-maker to have regard to the frequency of the non-citizen's offending, and the other factors (where relevant) to which para 13.1.1(1) refers, the decision-maker's consideration is not confined to those factors when considering the nature and seriousness of the non-citizen's criminal offending or other conduct "to date". The chapeau to para 13.1.1(1) makes this perfectly clear. If the word "frequency" in para 13.1.1(1)(e) has the limited meaning for which the applicant contends, it cannot have been an error for the Tribunal to have regard to, and make findings on, the applicant's actual pattern of offending. These findings were logically connected to the question of "frequency" and relevant to the Tribunal's overall consideration of the nature and seriousness of the applicant's offending. 28 In relation to the second element of the frequency criterion (increasing seriousness), the Tribunal found (at [45]) that, having regard to the sentences that had been imposed on him, it could not be said that the applicant had a "gradually evolving history of offending" in the sense that he commenced with relatively minor offending and graduated to more significant offending. However, the Tribunal also noted (at [46]) that the applicant's offending was "of a very serious nature from its virtual outset". This observation was also apposite and relevant to the Tribunal's consideration of whether there was an element of increasing seriousness of offending and to its overall assessment of the nature and seriousness of the applicant's offending. 29 The Tribunal's findings in relation to both elements of the frequency criterion led it to conclude that "a measure of weight" (which it later described as "a moderate level of weight") should be attributed to the frequency criterion, tempered by a recognition that the offences of violence displayed "relative brevity". 30 It was for the Tribunal to come to a view about the nature and seriousness of the applicant's offending. There is nothing in para 13.1.1(1) which constrained it to come to a particular view, or which required it to give any one factor or element any particular weight or, indeed, to undertake any particular synthesis of the factors it was required to take into account, together with other factors that were relevant to its assessment of the nature and seriousness of the applicant's offending. All of this was within the Tribunal's decisional freedom. Thus, even if the word "frequency" in para 13.1.1(1)(e) has the limited meaning for which the applicant contends, no error is demonstrated in the Tribunal's consideration of the frequency criterion or in the findings it made or the conclusion it reached. 31 Thirdly and relatedly, I am not persuaded that the Tribunal's reference to the seriousness of the applicant's offending amounted to "double-counting". In this part of its reasons dealing with the frequency criterion the Tribunal was doing no more than reflecting on the fact that, rather than displaying a trend of more serious offending, the applicant's offending - at least in terms of his crimes of violence - was serious at the outset. 32 Fourthly, for the reasons I have already given, I do not accept that the Tribunal's conclusion (that moderate weight should be attributed to the frequency criterion in favour of non-revocation of the cancellation decision) was unreasonable, illogical or irrational. I do not accept that there is no logical connection between the evidence before the Tribunal and this conclusion. For the avoidance of doubt, I do not accept that the applicant has established the other pathways to jurisdictional error on which he relies. 33 Fifthly, even if error, as alleged by the applicant, is demonstrated, I am not satisfied that absent such error, there is a realistic possibility that the Tribunal's decision would have been different and that the applicant was, therefore, denied the possibility of a different outcome. Indeed, I accept the Minister's submission that it is improbable that a different decision would have been reached by the Tribunal. Thus, if there be error, as the applicant alleges, I am not satisfied that such error was material to the Tribunal's overall decision, and thus jurisdictional in character. 34 When considering the nature and seriousness of the applicant's conduct "to date", the Tribunal found, correctly, that violent crimes are to be viewed very seriously (para 13.1.1(1)(a) of Direction 79). The Tribunal found: 27. Having regard to (1) the nature of the offending involving multiple victims of the Applicant's patently violent conduct, and (2) the impression that at least two sentencing judicial officers have formed about the nature of that conduct, we find that this sub- paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant's conduct must be viewed very seriously. 35 The Tribunal also found, correctly, that crimes of violence against women are to be viewed very seriously, regardless of the sentence imposed (para 13.1.1(1)(b) of Direction 79). The Tribunal found: 35. We accept that the Applicant's history of offending is of relatively short compass. Be that as it may, viewed through the lens of this sub-paragraph (b), his offending must be construed as very serious involving, as it does, wanton and deliberately violent offending against two women and an unborn child. We are therefore of the view that an application of this subparagraph (b) of the Direction to the factual matrix of this Applicant's offending strongly militates in favour of not revoking the mandatory cancellation decision. 36 The Tribunal also found, correctly, that crimes against vulnerable members of the community (such as the applicant's pregnant wife and his middle-aged mother-in-law) are to be viewed seriously (para 13.1.1(1)(c) of Direction 79). The Tribunal found: 39. Thus, the Applicant's offending against vulnerable members of the community - specifically, his mother-in-law and his then-pregnant wife - is a relevant factor for consideration and application of this sub-paragraph (c), in favour of a finding that his offending has been of a very serious nature. Accordingly, this sub-paragraph (c) is supportive of a finding that his visa status should not be restored to him. 37 When considering the sentences imposed on the applicant (para 13.1.1(1)(d) of Direction 79), the Tribunal found: 44. We are thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious. 38 When considering the cumulative effect of the applicant's offending (para 13.1.1(1)(f) of Direction 79), the Tribunal found: 50. Accordingly, the application of this sub-paragraph (f) to the present factual matrix gives rise to a finding that the cumulative effect of the Applicant's repeated offending - even of such a relatively short compass - is such as to render it very serious. The weight that can be allocated to this specific factor ought to be ameliorated by (1) the relatively short two month scope of the duration of the offending and (2) its isolation to, strictly speaking, three victims, two of which are vulnerable victims. We therefore allocate a moderate level of weight to this sub-paragraph (f). 39 When considering the totality of the evidence relevant to the factors in paras 13.1.1(1)(a) - (f), the Tribunal expressed the view that the applicant's conduct was readily capable of characterisation as "very serious". In reaching this view, the Tribunal gave (as I have said) a "moderate level of weight" to the frequency criterion in favour of non-revocation. It is plain, however, that the Tribunal's findings in respect of all the other factors were in favour of non-revocation. Indeed, the Tribunal's conclusion in respect of the factor in para 13.1.1(1)(b) was that it strongly militated in favour of not revoking the cancellation decision. There is no indication whatsoever in the Tribunal's reasons that it would have come to different findings in respect of paras 13.1.1(1)(a) - (d) and (f) of Direction 79 had it confined its consideration of the frequency criterion as the applicant contends it should have confined it. 40 But that is not all. When considering the nature of the harm to individuals or to the Australian community should the applicant engage in further criminal or other serious conduct, as it was required to do under para 13.1.2(1)(a) of Direction 79, the Tribunal found: 59. The difficulty with assessing the nature of harm that would be caused by any similar violent reoffending by the Applicant is that we do not have any independent assessment of his propensity to reoffend. There is no independent assessment that any factors giving rise to his offending have been identified and are under some kind of remedial management and control. Accordingly, the only reliable finding is that were he to reoffend in a similar way, it would expose members of the Australian community to a significant risk of serious physical and psychological harm. Having regard to the circumstances of his violent offending against his wife, mother-in-law and brother-in-law, the nature of such harm could, quite conceivably, be catastrophic. 41 When considering the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending, as it was required to do under para 13.1.2(1)(b) of Direction 79, the Tribunal found: 63. The Applicant's self-reported rehabilitation has only been tested in the closed environs of either criminal custody or immigration detention. It is yet to be tested in the broader Australian community where he would be exposed to an unfettered capacity to, for example, present at a local pub or other social scenario where alcohol would be available. We are not convinced from the evidence now before the Tribunal that his capacity to moderate and control his intake of alcohol and/or illicit drugs is such as to render him as being of a lower risk of: (1) succumbing to the mind-altering effects of abusing alcohol and/or illicit drugs; and (2) feeling sufficiently free and empowered to re-commence his offending behaviour. 42 The Tribunal also found: 68. Having regard to the totality of the material, our finding is that there is a strong and convincing likelihood of this Applicant reoffending. Were he to re-offend, that offending has the clear capacity to cause very serious physical and/or psychological harm, indeed catastrophic and life-long irreparable harm, to a victim of the Australian community. Such a risk, in our view, is not acceptable to the broader Australian community. 43 When expressing its overall conclusion on the protection of the Australian community from criminal or other serious conduct, the Tribunal found: 85. We have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant's offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community. 86. Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, we find that Primary Consideration A weighs heavily in favour of non-revocation. 44 The second "primary consideration" to which the Tribunal directed its attention was the best interests of minor children in Australia. The Tribunal referred to this as Primary Consideration B. Having regard to the applicant's particular circumstances, the Tribunal found this consideration to be irrelevant and gave it no weight when deciding whether the cancellation decision should be revoked. 45 The third "primary consideration" to which the Tribunal directed its attention was the expectations of the Australian community. The Tribunal referred to this as Primary Consideration C. As to this, the Tribunal said: 101. The can be no doubt that the Applicant has breached the expectations of the Australian community as he has failed to abide by the law. Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C, we make the following findings: (a) the Applicant has made little in the way of positive contribution to the Australian community; (b) the Applicant has lived in Australia for approximately two and a half years prior to his offending; (c) the Applicant's offending to date is of a very serious nature involving, as it does, serious offending to women; (d) the Applicant has demonstrated a his lack of insight into his substance abuse issues; (e) there is a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and (f) that (based on our assessment) there is a quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend. 46 The Tribunal concluded: 102. We are of the view that the above findings militate in favour of not revoking the cancellation of the Applicant's visa. We accordingly find that Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review. 47 The Tribunal then turned its consideration to a number of other considerations, namely: Australia's non-refoulement obligations (which the Tribunal found to be not relevant); the strength, nature and duration of the applicant's ties to Australia (which the Tribunal found weighed moderately in favour of the applicant); the impact of the applicant's removal from Australia on Australian business interests (which the Tribunal found to be not relevant); the impact on victims (which, the Tribunal found should be given minimal weight in favour of the applicant); and the extent of impediments should the applicant be removed from Australia (which the Tribunal found should be given neutral weight). 48 Having regard to all these findings, the Tribunal then considered whether there was another reason to revoke the cancellation decision. The Tribunal said: 130. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows: • Primary Considerations A and C both weigh heavily in favour of non- revocation; • Primary Consideration B is not relevant to this application; • We have outlined the weight attributable to the Other Considerations. We do not consider that any of them, even if combined with each other, outweigh the significant combined weight we have attributed to Primary Considerations A and C. • A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant's visa. 49 In light of these findings, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation decision. 50 Having regard to the way in which the Tribunal expressed its findings and conclusions in relation to all these other matters, it is impossible to think that, as a practical matter, the Tribunal would have reached a different overall conclusion had the Tribunal not committed the error which the applicant alleges in relation to its interpretation and application of para 13.1.1(1)(e) of Direction 79. Thus, if there be error, I am not satisfied that the applicant was denied the possibility of a different outcome in respect of the Tribunal's review.

Disposition 51 As no jurisdictional error in the Tribunal's decision has been established, the applicant's originating application, as amended on 21 May 2020, will be dismissed, with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.