analysis
32 It is against that background that the Applicant's Ground of Application is to be assessed.
33 First, as the Minister submitted, the Tribunal asked itself the right question: see [10] of its reasons, extracted at [19] above. Next, I reject the Applicant's submission that the present case "suffers from precisely that jurisdictional error" identified by North J in Williams at [42]-[44].
34 In Williams, the relevant part of the Tribunal's reasoning was set out at [28]:
Lastly, the Tribunal addressed the final issue which it posed for itself initially, namely, "Should the discretion to cancel the visa be exercised?" The Tribunal said:
67. The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second primary consideration concerning Mr Williams's ties to Australia weighs against cancellation. The third and fourth primary considerations do not have any practical application.
68. The Tribunal has concluded that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
69. After considering all the circumstances of the primary considerations and the other considerations the Tribunal finds, particularly in respect of the seriousness of the offences, the nature of Mr Williams's offending history and the risk of re-offending, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.
35 In considering that reasoning in the context of paragraph 7(1)(b) of Direction No 55, North J found:
42. The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant's visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, "Should the discretion to cancel the visa be exercised?"
43. This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is "whether the risk of future harm by a non-citizen is unacceptable". This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant's visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact considered.
44. It was accepted by the first respondent that if the Court determined that the Tribunal had failed to ask the right question it will have made a jurisdictional error and that relief should be granted. This concession was correct. Consequently, the decision of the Tribunal will be quashed and the matter remitted for determination according to law.
36 A few matters must be noted. Unlike Williams, where the Tribunal made only a "passing reference to [7] of [Direction No 55]", here the Tribunal specifically referred to paragraph 7(1)(b) at [10] of its reasons: see [19] above. Then, after specifically identifying paragraph 7(1)(b), the Tribunal went on to consider the question "whether the risk of future harm by a non-citizen is unacceptable" in various parts of its reasons. Before turning to that analysis, it is necessary to recall that paragraph 7(1)(b) forms part of paragraph 7 which sets out how the decision maker is to exercise the relevant discretion: see [6] above. As the paragraph provides, the exercise of the discretion is informed by the principles in 6.3. Relevantly, for present purposes, paragraph 6.3(3) provides:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling … the visa.
37 What then did the Tribunal do? Under the heading "Weighing up the Considerations" (see also [22] above) it stated:
82. I find that [the Applicant] presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, [the Applicant] remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as [the Applicant] has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.
…
84. … The current evidence regarding [the Applicant's] drug addiction is that the risk that he will resume a drug habit remains high. …
…
86. I find that the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. …
(Emphasis in bold added.)
38 Under the headings "Primary Considerations" and "Other Considerations" the Tribunal also stated:
23. … I also accept the Minister's contention that [the Applicant's] conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community. It is a very significant factor in the exercise of the Minister's discretion.
…
28. There cannot be any doubt about the fact that should [the Applicant] engage in similar criminal conduct in the future, the nature of the harm that could be suffered by individuals or the Australian community is extremely serious. Upon release from prison, should [the Applicant] resume his drug habit, which would most likely lead to drug trafficking given that his opportunities for full time employment following release appear to be remote, it is foreseeable that he would once again arm himself for protection as he claimed he did in the past. Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable.
…
43. There cannot be any question about the fact that despite the rehabilitation programs in which [the Applicant] has participated, there remains a real risk of recidivism. The risk is not merely speculative or fanciful. Furthermore, although quantitatively that risk has reduced from high to moderate, it nevertheless remains significant. In fact, it appears entirely dependent on whether [the Applicant] is able to overcome his drug addiction. At the present time, he has not done so. He remains on a methadone program. The evidence before me also indicates that when under pressure, [the Applicant] resorted to using cannabis in prison despite being fully aware of the regular random drug testing conducted in that environment. Also, the VIP program identified boredom and financial difficulties as significant risk factors. Although [the Applicant] has been offered a job on his release from prison, that work is for one day per week only. He admitted in cross-examination that his earnings from that work would not be sufficient to sustain him, his partner and four children. Furthermore, he would have much spare time on his hands. In these circumstances, I find it is accurate to conclude that [the Applicant], when released back into the community, nevertheless presents as a very real risk of reoffending.
44. The Minister also contended that due to the extent and seriousness of the crimes committed by [the Applicant] and in particular the numerous violent offences involving use of a weapon including firearms, the consequences of him reoffending are extremely grave. In my opinion, the evidence supports that contention and I find that any risk of him re-offending is wholly unacceptable to the Australian community.
…
68. … the most recent report indicating [the Applicant] remains at least at a medium risk of reverting to his criminal activities once released from prison…
…
74. While I accept the evidence regarding the effect of the visa cancellation on [the Applicant's] partner and their children, given the substantial risk which remains that [the Applicant] will revert to his former criminal behaviour, and the fact that realistically, [the Applicant] has had limited contact and involvement with his immediate family, including his children, it is likely that little will change should [the Applicant's] visa be cancelled.
…
78. … In fact, his history of criminal offending, which is likely to be the best indicator of his future conduct, discloses that as soon as he is released from detention, he has slipped back into drug using and dealing, and also violent conduct. That has occurred despite [the Applicant] completing a number of courses and making promises that he would not reoffend. Clearly, his risk of reoffending remains real and the probability of that occurring is moderately high. In fact the evidence discloses that the risk of reoffending remains whether [the Applicant] remains in Australia or whether he is returned to the Philippines.
(Emphasis in bold added.)
39 As is readily apparent, the position here is distinguishable from that considered in Williams. In Williams, the Tribunal did not ask or consider the relevant question (see [42] of the decision extracted at [35] above). In the present case, the Tribunal asked itself the right question. It specifically referred to paragraph 7(1)(b) at [10] of its reasons: see [19] above.
40 Here, the Tribunal then went on and addressed the question "whether the risk of future harm by a non-citizen is unacceptable". In my opinion, the Tribunal found that the risk of future harm was unacceptable at [86]. And, no less importantly, the Tribunal also referred to that matter at [23], [28], [43], [44], [78] and [82] of its reasons in the passages which are in bold and extracted at [37] and [38] above. The reasons of the Tribunal are meant to inform and must be read as a whole: Wu Shan Liang at 272. The reasons, read fairly, demonstrate that the Tribunal started and finished with the right question and, in doing so, exercised the discretion in the manner prescribed by paragraph 7 of Direction No 55. If the Applicant's submissions were accepted, the practical result would be that a decision maker must consider a fact or matter under paragraph 7(1)(a) and then separately consider that fact or matter (to the extent that is relevant) again, at a different time and in a different place, under paragraph 7(1)(b). That submission is rejected to the extent that it suggests that there is some prescribed method or formula of recording the decision making process. Paragraph 7(1), informed by the principles in paragraph 6.3, says nothing about the form or content of the decision record. It is directed at how the decision maker exercises the discretion. Here, in my opinion, the decision maker exercised the discretion in accordance with paragraph 7(1) including, in particular, sub-paragraph 7(1)(b). The decision of the Tribunal does not reveal error of the type identified by North J in Williams: see also Lesianawai v Minister for Immigration and Border Protection [2014] FCA 402 at [40]. The First Element of the Ground of Application does not assist the Applicant.
41 The Second Element of the Applicant's Ground of Application was that the Tribunal's failure to undertake the required balancing exercise informed and underpinned the Tribunal's approach to the primary considerations and led the Tribunal into error. The Applicant identified two matters as demonstrating the Tribunal's error in its analysis and conclusion on the first primary consideration - that the Tribunal conflated the risk of the Applicant reoffending with the likelihood of future harm (at [43]-[44] of its decision) and the Tribunal determined the acceptability of the Applicant reoffending to the Australian community (at [44] and [82] of its decision) in place of the acceptability of the level of potential harm, properly balanced by other factors.
42 As can be seen from the analysis at [32]-[40] above, the Tribunal did undertake the required balancing exercise when considering whether the risk of future harm by a non-citizen was unacceptable. However, did the Tribunal err in the manner suggested by the Applicant in its approach to the primary considerations?
43 First, the alleged conflation of the risk of reoffending with the likelihood of future harm. In considering the first primary consideration, the protection of the Australian community from criminal or other serious conduct, the Tribunal was required to consider first the nature and seriousness of the conduct to date and then the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct: paragraph 9.1(2) of Direction No 55, extracted at [10] above.
44 In relation to the second of those considerations, paragraph 9.1.2(1) of Direction No 55 relevantly provides:
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
45 At [14]-[26] of its decision, the Tribunal considered the nature and seriousness of the conduct to date, addressing the first limb of the first primary consideration. It then considered the risk to the Australian community, the second limb of the first primary consideration at [27]-[44]. It found that "the harm which could be caused if [the Applicant's] conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable": at [28]. This addresses paragraph 9.1.2(1)(a) of Direction No 55. The Tribunal then considered whether the Applicant was likely to engage in further criminal conduct including the evidence as to both risk and rehabilitation (at [29]-[43]). At [43], the Tribunal found that the Applicant "presents as a very real risk of reoffending". This addresses paragraph 9.1.2(1)(b) of Direction No 55.
46 The Tribunal then went on to conclude its assessment of the first primary consideration, protection of the Australian community from criminal or other serious conduct, finding that in light of the gravity of the consequences of the Applicant's reoffending, "any risk of him re-offending is wholly unacceptable to the Australian community": at [44]. This reasoning does not disclose a "conflation of the risk of reoffending with the likelihood of future harm", but instead demonstrates that the Tribunal proceeded by separately considering each of the relevant aspects of Direction No 55. No error is disclosed.
47 The Applicant's final contention in relation to the first primary consideration was that the Tribunal determined the acceptability of the Applicant reoffending to the Australian community (at [44] and [82]) in place of the acceptability of the level of potential harm, properly balanced by other factors. As submitted by the Minister, the Tribunal balanced or weighed the relevant considerations (particularly at [80]-[86]), and found that the level of potential harm meant that "[his] remaining in Australia poses an unacceptable risk". The Tribunal found that "the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia … because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend": at [86] (emphasis added). In my view, that reasoning demonstrates that the Tribunal considered the level of potential harm and balanced it against the other relevant considerations. The Second Element of the Ground of Application does not assist the Applicant.