CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-12-19|Before: Jackson J

The applicant's case 35 At the hearing, the applicant was given leave to rely on a further amended originating application. Ground 1 in that application is: The Tribunal fell into jurisdictional error by relying on evidence to make an adverse finding against the appellant which was, in all of the circumstances of the case: a) unreliable; and/or b) inconclusive; and/or c) unsafe. Alternatively, the Tribunal denied the Applicant procedural fairness in the way that it dealt with this evidence. 36 The ground was followed by numerous particulars, but the refinement of the applicant's case in oral submissions means it is not necessary to set them out. As so refined, it was clear that the applicant was not, for example, contending that the second Tribunal fell into jurisdictional error by making findings that breached the condition implied into its statutory functions that they be performed within the bounds of reasonableness. His main submission was, rather, that the reports contained allegations only, but on the face of the Tribunal's reasons (especially paragraph 88, reproduced above) the Tribunal accepted the reports without grappling with why they did not lead to convictions. 37 Counsel for the applicant properly conceded that the police reports fulfilled the requirement in paragraph 8.2(2)(b) that they be information or evidence from an independent and authoritative source. Generally, police forces will meet that description. But he submitted that the Tribunal fell into error by simply accepting everything in the reports because they came from a source of that kind. The Tribunal should instead have treated the reports as containing allegations, and placed whatever weight was thought to be appropriate bearing that and all other relevant matters in mind. 38 Counsel gave as an example the fact that typically police reports recount things said by complainants or alleged victims that have not been tested. According to the applicant, the Tribunal fell into error by failing to recognise that the reports might be inaccurate, and thereby mischaracterised or misunderstood the nature of the statutory task as shaped by the particular requirements of Direction 99. 39 Framed in terms of procedural fairness, the ground appeared to be that the Tribunal failed to put the applicant on notice that it was proposing to deal with the police reports in that way, that is, to accept their veracity uncritically. Had it put him on notice of that, the applicant would have had an opportunity to try to persuade the Tribunal not to do so. That was in circumstances where the applicant's general denial of having perpetrated domestic violence meant that the veracity of the reports was in issue. While the Minister submitted that the applicant had accepted before the first Tribunal that he had engaged in some of the conduct described in the police reports, the broader context of at least some of those reports had been disputed, so the accuracy of at least some of them was in issue before the second Tribunal (the transcript of the first Tribunal hearing being in evidence before the second Tribunal). 40 In the hearing it was clarified, then, that the complaint about procedural fairness was not that the applicant was unaware that the police reports might be relied on. That complaint could hardly have been made: the Minister's Statement of Facts, Issues and Contentions put the police reports and their contents to the Tribunal in terms (before both the first Tribunal and the second Tribunal). It was, rather, that the way the second Tribunal was going to approach the reports - its uncritical acceptance of them once it was satisfied that they came from independent and authoritative sources - was not notified to the applicant. 41 It is also worth making clear that counsel for the applicant made no reference to the closing words of paragraph 8.2(2)(b) of Direction 99, which require that, when information from independent and authoritative sources concerning family violence is being considered, 'the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness'. Ground 1 does not, therefore, raise any asserted failure to meet that requirement (as to which, see Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43 at [46] (Burley J); and AUP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 442 at [67]-[72] (Rofe J)). 42 For completeness, I note that some of the particulars in the originating application asserted that the police reports were 'contrary to known facts' and/or 'contained assertions that were contrary to the only reasonable inference'. But at no point did counsel for the applicant identify any facts or inferences that contradicted the reports. In light of the oral submissions described above, I take these particulars to have been abandoned. Counsel also explicitly abandoned a particular to the effect that the Tribunal should not have relied on the material at all because it was outside the bounds of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

Consideration 43 I accept with a qualification what might be called the factual premise of the applicant's argument: namely, that on the face of its reasons, the Tribunal accepted the veracity of the accounts of the applicant's conduct that were to be found in the police reports, without looking into why they did not result in charges or convictions, or addressing any other matter that might have cast doubt on their veracity. 44 At paragraph 86, without further discussion, the Tribunal had 'no hesitation in finding' that the applicant's conduct in the police reports 'was violent, threatening and that it comprised behaviour that caused each of its victims to be fearful'. At paragraph 87 it said that the applicant had perpetrated family violence that had been reported by police but not actually charged and convicted. And at paragraph 88 it reasoned directly from its findings that the police reports were independent and authoritative sources to a conclusion that the applicant's 'reported but not convicted family violence conduct must be found to constitute family violence for the purposes of the Direction'. At the only other place where it considered the police reports, paragraph 91, the Tribunal relied on them without undertaking any assessment of whether they were to be accepted as true. 45 The qualification is that even though the Tribunal accepted the police reports uncritically, it does not follow that it misunderstood their nature, or overlooked the fact that they were reports of matters that had not been tested in court and subjected to the verdict of a judge or jury. To the contrary, the passages from the Tribunal's reasons set out above show that it appreciated that. At two points in paragraph 86 it drew the distinction between conduct that led to a conviction and conduct that did not, and characterised the material as containing 'descriptions' of conduct of both kinds (see [30] above). At paragraph 88 (also reproduced at [30]) the Tribunal drew the distinction again and showed that it was aware that the police reports had not resulted in charges or convictions. And when it came to assess the cumulative effect of the applicant's conduct at paragraph 91 (see [31] above), the Tribunal did so on the basis, not that the matters in the reports had been established beyond reasonable doubt, but that they had been sufficient to compel third persons to call the police. In my view, the Tribunal appreciated the difference between police reports containing unproven allegations and convictions in courts of law. To that extent, its reasons show no misapprehension of the nature of its statutory task. 46 In any event, I do not accept what might be called the legal premise of the applicant's argument: namely, that to accept the reports without looking into the truth of their contents was to misunderstand or mischaracterise that task. In this case, the Tribunal's freedom in the performance of its statutory task was circumscribed by the prescriptive requirements of Direction 99. The applicant made no submission that the direction itself transgressed the limits of s 501CA(4)(b) of the Migration Act. The Tribunal was explicitly and assiduously following the direction. The question, then, is whether in accepting the veracity of the police reports in the way that it did, the Tribunal acted in accordance with the requirements of the direction. 47 In my view, on the proper construction of Direction 99, it did. It is important to understand the stage in the reasoning process mandated by Direction 99 at which the Tribunal made the impugned findings. The primary consideration in question is 'whether the conduct engaged in constituted family violence' (para 8(2)). Paragraph 8.2 of the direction tells decision makers how they are to approach that consideration. It is convenient to set the paragraph out in full: 8.2 Family violence committed by the non-citizen (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below). (2) This consideration is relevant in circumstances where: a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness. (3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant: a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; b) the cumulative effect of repeated acts of family violence; c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: i. the extent to which the person accepts responsibility for their family violence related conduct; ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); iii. efforts to address factors which contributed to their conduct; and d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non- citizen's migration status, should the non-citizen engage in further acts of family violence. 48 Paragraph 8.2(1) emphasises the seriousness with which the Australian government views family violence, and says that its concerns in this regard are proportionate to the seriousness of the family violence, cross-referring to paragraph 8.2(3). 49 Paragraph 8.2(2) then, in terms, tells decision makers how they must determine whether family violence is a relevant consideration. Sub-paragraph (a) requires no elucidation for present purposes. Sub-paragraph (b) effectively requires decision makers to answer two questions in the affirmative: is there 'information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence', and has the non-citizen been 'afforded procedural fairness'? 50 Then sub-paragraph (3) directs decision makers as to the factors they must consider in 'considering the seriousness of the family violence engaged in by the non-citizen'. It is at that point that the decision maker is required to assess the seriousness of the family violence by reference to the various factors. 51 Understood in context, then, what paragraph 8.2(2) requires is a threshold inquiry into whether the primary consideration of family violence is a relevant one. It requires the decision maker to find that it is relevant, if the criterion in sub-paragraph (a) and/or the criteria in sub-paragraph (b) are satisfied. 52 In my view this neither requires nor leaves room, at this point, for any consideration of the veracity of the materials relied on. That is evidently so in connection with sub-paragraph (a) concerning criminal convictions, and is also the case with sub-paragraph (b). In the latter provision, the drafters of the direction can be seen to have taken into account the possibility that evidence from other sources may well be less reliable than a guilty verdict in a court of law. They have addressed that by requiring that the sources available are independent and authoritative, and that procedural fairness has been afforded. Provided those criteria are satisfied, the Tribunal must determine that family violence is a relevant criterion, and move on to the various evaluations required by sub-paragraph (3). 53 In my respectful view, this understanding of paragraph 8.2 of Direction 99 is consistent with views expressed by Burley J in Aghbolagh at [35]-[36] (emphasis in original): … When read as a whole, para 8.2(2) identifies the circumstances where the receipt by a decision maker of information in relation to the perpetration of family violence is to be considered relevant. In para 8.2(2)(a) this will arise upon a non-citizen being convicted of an offence, found guilty of an offence or having charges proven (however they are described) that 'involve' family violence. The definition of 'family violence' is broad and extends beyond physical assault to include derogatory taunts, destruction of property and includes acts that fall within the ambit of what might broadly be termed acts of coercive control: see definition at [8] above. Consideration of 'family violence' is also relevant to a decision maker where, under para 8.2(2)(b), there is information or evidence from independent and authoritative sources indicating that the non-citizen is or has been involved in the perpetration of family violence. Sub-paragraph (b) is self-evidently of broader scope than (a). At its widest, it identifies that the decision maker must take into account as a consideration not only evidence, but information indicating the non-citizen's perpetration of family violence. This is relevantly subject to the limitation that it is from 'independent and authoritative sources'. However, para 8.2(2) does not establish a particular standard for fact finding. It presents the circumstances in which the consideration crosses the threshold of 'relevance' by reference to the identified information. The question of what may be considered to be an independent and authoritative source is left to the decision maker, being a question of evaluation having regard to the nature of the conduct and the circumstances of the particular case. This is a familiar task and is to be understood in the context of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides for the Tribunal to conduct a proceeding with as little formality and technicality as required by the case, noting that the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate. 54 At [41] Burley J described the 'threshold of relevance' set by paragraph 8.2(2)(b) as 'low'. 55 The facts and the issues in Aghbolagh were different to the current case. The Tribunal in that case had engaged in a critical assessment of the relevant police reports, and the critical issue was whether they were from an independent and authoritative source. But Burley J's construction of paragraph 8.2 of Direction 99 is consistent with the one I have outlined. 56 It is clear from the excerpts of the Tribunal's decision set out above that it was following the path set by paragraph 8.2. It framed the inquiry in terms of each of sub-paragraphs (2)(a) and (2)(b): see [30] above. The reasoning that the applicant particularly criticised was explicitly directed to determining whether the applicant's conduct as described in the police reports met the definition of family violence in Direction 99, and (relevantly) whether it met the requirements of paragraph 8.2(2)(b): see [30] above. On determining that it did, the Tribunal concluded that the conduct reported in the police reports 'must be found to constitute family violence for the purposes of the Direction' (para 88). And this was in a section headed 'Is the Applicant's conduct captured by paragraph 8.2 of the Direction?'. 57 The Tribunal was thus assessing whether the threshold requirements for the primary consideration to arise were met. Counsel for the applicant's proper concession that the police reports here were independent and authoritative sources, and the lack of any submission that the Tribunal did not comply with the balance of para 8.2(2)(b), therefore dispose of ground 1. They confirm that the Tribunal complied with Direction 99. And since it did so, it did not engage in any departure from usual practice which needed to be notified to the applicant in order to afford procedural fairness: cf. Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [64]-[67] (Gageler and Gordon JJ). 58 Those conclusions are only reinforced by a concession counsel also made (with respect, inevitably) that the family violence consideration was relevant. To the extent that the applicant was criticising the lack of any express weighing of the veracity of the things said in the police reports, that is readily explicable by the presence of ample other material showing that domestic violence was indeed relevant. In those circumstances, the Tribunal did not need to expressly assess the weight to be put on each of the police reports. 59 And that is so in circumstances where, as I have said, the Tribunal displayed no misunderstanding of the difference between unproven police reports and criminal convictions. When it came to assess the seriousness of the family violence engaged in by the applicant in accordance with paragraph 8.2(3), the Tribunal showed an appreciation of the nature of the police reports, and only relied on them to a limited extent (see again para 88). While views may differ about whether the Tribunal should have approached the reports with more scepticism at that point, the assessment it conducted under paragraph 8.2(3) was not the object of the applicant's criticism. And even if it had been, that would have been a criticism of the merits of the decision rather than one going to jurisdictional error: cf. Aghbolagh at [43]. 60 I do not uphold ground 1.

The applicant's case 61 Ground 2 is: The Tribunal failed to comply with para 8.1.2(2)(b) of Direction 99, as at [Tribunal reasons] [74]-[76] and [78]-[79] it failed, in substance, to complete an assessment and evaluation of the risk to the Australian community based on the likelihood of the applicant engaging in further criminal or other serious conduct; and/or, alternatively, failed to properly take that factor into account. 62 The paragraph of Direction 99 to which the ground refers requires the Tribunal to have regard to: the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: i. information and evidence on the risk of the non-citizen 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). 63 With minor changes to the paragraph references, ground 2 is the same as a ground that was accepted in Jattan. It will be necessary to consider that case shortly, but in overview, the Tribunal there had concluded that Mr Jattan represented 'an unresolved and otherwise unknown level of recidivist risk' and that his 'current level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community': Jattan at [43]-[44]. Justice Banks-Smith found that it was not possible to tell from the Tribunal's reasons what time it had in mind when it said that, and what level of risk it had in mind as at any such time. As a result, the Tribunal's conclusion was devoid of meaningful content, so that paragraph 8.1.2(2) of Direction 99 was not properly taken into account: see [72]-[73]. 64 Essentially, the applicant submits that the same thing has happened here. He points to similarity between the wording of the conclusion that the Tribunal reached in Jattan and the wording of the equivalent conclusion reached here: see paras 76 and 78(b) of the Tribunal's reasons at [22] above. Counsel for the applicant submitted that in this case it is even less clear what the Tribunal had in mind, although he did not develop why. Counsel further submitted that in placing great weight on the overall consideration, the Tribunal failed in its task where it failed to specify the level of previous risk.

The Minister's submissions 65 Relying on RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 108 (RDYQ FC), counsel for the Minister submits that the Tribunal was correct when, at paragraph 76 of its reasons, it indicated doubt as to whether it was required to assess the future risk of the applicant reoffending. The Minister submits that the Tribunal was not required to state a particular value or level of the risk of reoffending, just to have regard to that risk in its consideration of paragraph 8.1.2: see RDYQ FC at [13], [15]. 66 In relation to whether the Tribunal's conclusion about the applicant's recidivist risk was devoid of meaningful content, the Minister submits that, contrary to the applicant's (undeveloped) submission, in this case it is clearer what the Tribunal had in mind than it was in Jattan. In this case the Tribunal referred to the applicant having been convicted and sentenced in November 2020, at several points in its reasons. Counsel for the Minister then took me to a Department of Justice record which was before the Tribunal. This shows that the applicant was received at Hakea Prison (a remand prison) on 19 August 2020, transferred to Acacia Prison on 26 November 2020, and apparently discharged into immigration detention on 1 March 2021. The Minister submits that this, together with the references to the applicant's conviction and sentencing in November 2020, leads to an inference that 19 August 2020 is the date the Tribunal had in mind as the time of the applicant's most recent removal from the Australian community. In that respect, he submits the history of Mr Jattan's removals from the Australian community was more convoluted than the applicant's history in this case. 67 The Minister makes submissions, not only about the time that the Tribunal had in mind, but also about the level of risk that it had in mind. He submits that this case is also distinguishable from Jattan in that respect. He relies on the Tribunal's statement at paragraph 49 of its reasons to the effect that the applicant's recidivist risk is not so low that the prospect of a future domestic partner being injured or killed is acceptable: see [14] above. According to the Minister, the Tribunal having framed the issue that way, its subsequent analysis and conclusion should be understood to be to the effect that the risk was unacceptable. Counsel for the Minister referred in particular to the Tribunal's statement in paragraph 74 of its reasons that while the applicant's substance abuse issues 'remain unresolved or unaddressed, his recidivist risk remains uncertain and ultimately unknown': see [22] above, second last bullet point. Counsel submitted that in the context of the statement at paragraph 49, this should be understood as the Tribunal indicating that it had assessed the risk of recidivism as unacceptable. In that respect too, the Minister submits, this case is distinguishable from Jattan. The Minister draws a comparison with Chen v Minister for Immigration and Border Protection [2017] FCA 46 in which, he says, the Court held that it was enough for the Tribunal to have identified that there was a risk. 68 The Minister therefore submits, in effect, that in this case the applicant has not discharged his onus of establishing that the Tribunal's conclusion as to the risk of reoffending was devoid of meaning, so as to indicate that it had not had regard to that risk as required by Direction 99. 69 Counsel for the applicant sought to undermine this by pointing to ambiguity about whether going into immigration detention was the time of the applicant's most recent removal from the community, rather than the time of his most recent imprisonment for criminal offences (or preceding remand). But on a fair reading of the Tribunal's reasons I do not consider that this ambiguity is real. As is often the case, the applicant went directly to immigration detention on his 'release' from prison, and spent no time in the community between the two places of detention. So it would be an unusual and strained reading of the Tribunal's reasons to understand it to be referring to the time of his immigration detention.

Jattan and RDYQ FC 70 Both counsel proceeded on the basis that the principles to be applied to determine ground 2 are to be found in Jattan and RDYQ FC. I will therefore summarise the principles by reference to those cases. 71 In my respectful view, the analysis conducted in Jattan relevantly establishes the following: (1) Setting aside the effect of any direction under s 499 of the Migration Act, the risk of harm to the Australian community is a mandatory consideration for decision makers under s 501(2) (the main cases on that subject being about that provision), and so by parity of reasoning, it is a mandatory consideration for decision makers under s 501CA(4)(b). But it is not necessary for the decision maker to ascribe any particular characterisation to the quality of risk, or to quantify the risk. By the same token, merely referring to the existence of 'a risk' may not be enough: Jattan at [54]-[59] and cases cited there. (2) Where a statutory direction applies, the decision maker is not required to provide an estimate of the extent of the likelihood of re-offending, or to make an express finding concerning that likelihood. What is required, to use the particular terminology of Direction 99, is that the decision maker 'have regard', cumulatively with the other factors listed in paragraph 8.1.2(2), to 'the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account' the information and evidence described in paragraphs 8.1.2(2)(b)(i) and (ii): see Jattan at [60]-[66], relying in particular on Burley J's decision in Chen and on Wigney J's first instance decision in RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 254. (There is no appreciable difference between the various prior iterations of Direction 99 in this regard: see Jattan at [60].) (3) Nevertheless, if the Tribunal's findings about the risk of reoffending are devoid of meaningful content, that may bespeak a failure to have regard to the likelihood as required by the direction: see Jattan at [73]. (4) Generally, any plausible justification for the Tribunal's course of reasoning must be found in its published reasons. That is not to say that the reasons must be read as though they were self-contained. But it does mean that if the reasons do not disclose that the Tribunal had particular materials before it in mind, those materials cannot be enlisted to support the decision. To do so would be to speculate: see Jattan at [74]-[75]. 72 It is necessary for the disposition of the present application to offer further comment on the third of these points. In my view, if the Tribunal's findings about the risk of reoffending are devoid of meaningful content, that may be jurisdictional error because if the Tribunal has not identified for itself what the likelihood is, it cannot be said to have had regard to that likelihood. There is nothing there that can be regarded. 73 To say this is not to be prescriptive about how the Tribunal must conceive of the likelihood, much less to mandate that it must express its conception in any particular way. But there is an irreducible minimum requirement that it at least have formed a view about the likelihood. Otherwise, it cannot be said to have had regard to it, as part of the overall requirement in Part 2 of Direction 99 to give appropriate weight to the various considerations: see para 7. Again, there would be nothing there to weigh. 74 The significance of RDYQ FC to the present analysis is that it is confirmation by a Full Court that the statutory direction does not require the Tribunal to make an express finding about the likelihood of the non-citizen reoffending. It reaffirms that the requirement is that the Tribunal 'have regard to' that consideration. 75 Before applying these principles to the present case, it is worth reaffirming also some matters that are axiomatic in cases such as the present. The inquiry is a fact intensive one that focusses on the Tribunal's reasons. They are to be read fairly and as a whole, in the context of the materials that were before the Tribunal, and without an eye keenly attuned to the detection of error. The onus of establishing error is on the applicant. Each case is different, and although comparing similarities in language between Tribunal decisions may be helpful, in the end the question is what the particular reasons in their particular context reveal about the reality of the consideration of relevant matters by the particular Tribunal. The requirement to read the reasons in the context of the materials before the Tribunal is not, however, a licence to use the materials to speculatively fill in gaps in the reasons.

Consideration 76 Applying those principles to the case before me, I consider that the applicant has not established jurisdictional error on the part of the second Tribunal. Jattan is distinguishable. 77 As the Minister points out, at paragraph 49 the Tribunal commenced its consideration of the likelihood of the applicant reoffending by answering, in the negative, a question posed in the Minister's submissions to the Tribunal: is the risk of death or serious injury to a future domestic partner so low as to be acceptable? 78 In distinguishing between 'risk' and adverse consequences in the way assumed in the question, the Tribunal appears to be using 'risk' as a synonym for 'likelihood' or 'probability'. This is reinforced by the heading which immediately precedes that paragraph and reads 'The likelihood of the non-citizen engaging in further criminal or other serious conduct'. The Tribunal's firm negative answer to the question indicates that it had formed a view about the level of likelihood, based on the analysis that followed. To the extent that the view about likelihood was rolled up with a view about adverse consequences, it is to be recalled that paragraph 8.1.2(2) of Direction 99 requires those matters to be considered cumulatively. 79 That the Tribunal expressly justified its view by reference to the analysis that followed is important. That analysis is therefore to be read as supporting, in the Tribunal's mind, a finding that the risk was not so low as to be acceptable. Apparently open ended findings may be understood differently in that context. 80 The analysis that followed this introductory statement in the Tribunal's reasons included consideration of the evidence about a number of factors relevant to the likelihood of reoffending: the applicant's own evidence as to what caused his offending; whether he felt suitable remorse and understood and accepted the gravity of what he had done; his conduct while in prison; whether he had been deterred by the punishments he had received; certain protective factors; and the applicant's substance abuse. The Tribunal was not reluctant to express forthright views about these matters (mostly adverse to the applicant), suggesting that it was not withholding judgement about the likelihood of reoffending. 81 The problem that now calls for resolution arises in the next part of the reasons, where the Tribunal focusses on what it says is the lack of any 'contemporaneous or current clinical opinion about the factors predisposing him to so very seriously offend': para 69. While on its face this evinces uncertainty, the way it was framed suggests that the Tribunal considered that it was a problem for the applicant. For example, at paragraph 71 the Tribunal says (emphasis added): … the Applicant cannot point to a current clinician who has examined him with particular emphasis on (1) his history of substance abuse; (2) psychopathological factors behind his apparent lack of consequential thinking; and (3) how and to what extent the abuse he reports having occurred earlier in his life now speaks to pre-dispositive factors behind his very serious offending. 82 That impression is confirmed by paragraph 73, which is reproduced above at [21]. The tenor of the paragraph is that the applicant has not given any reason to think that when he is released, he will be able to avail himself of expert treatment or programs that will reduce the likelihood that he will reoffend. 83 At paragraph 74, which is reproduced above (at [22]), the Tribunal repeats its complaint that there is a dearth of independent and reliable material around recidivist risk. But it goes on to summarise the evidence it did have before it concerning that risk in a manner showing that it has been considered. And, again, it does so in a manner indicating that it has formed an unfavourable view of the applicant and of his prospects of rehabilitation. It is in the course of this summary where the Tribunal first uses the verbal formulation that the applicant's recidivist risk is 'unknown'. The context of that use is important and so that particular bullet point, and the one that follows it, are worth setting out again (italics added): • unresolved and undefined substance abuse issues: in my non-clinical opinion, these issues have been front and centre - in a dispositive sense - in the Applicant's pattern of offending. There is a concerning historicity behind the Applicant's substance abuse issues stretching back some 20 years. While they remain unresolved or unaddressed, his recidivist risk remains uncertain and, ultimately, unknown; • the absence of current and independent expert clinical evidence: the Applicant's symptom(s) and diagnosis(es) predisposing his offending conduct remain unknown and untreated. His prospects of sourcing and receiving such rehabilitative treatment are aspirational and otherwise to be self-determined. 84 A fair reading of this in light of the Tribunal's earlier statement in paragraph 49 analysed above, leads to the inference that the Tribunal is saying that in the context of all the other material it has analysed, the lack of any expert opinion means that the risk of reoffending is so high as to be unacceptable. That reading is reinforced by the Tribunal's references to 'a concerning historicity behind the Applicant's substance abuse issues' and how the prospects of rehabilitative treatment are 'aspirational'. 85 The Tribunal then, under the heading 'Assessment of recidivist risk', said that it was 'hard-pressed' to identify a single evidentiary factor on which a finding of recidivist risk can be reliably made and that the 'absence of clinical intervention and reporting is concerning' (para 75). The applicant's intentions were said, pejoratively, to be 'aspirationally expressed' and not supported by clinical opinion. Again, all this indicated a negative view of the level of likelihood that the applicant will reoffend. 86 The Tribunal then put its ultimate finding in paragraph 76. It expressly eschewed 'any assessment of actual future risk'. In the context of what has gone before, this is not saying that the Tribunal has not reached a view about the likelihood of reoffending, only that it is not prepared to make a finding in terms of any particular level of likelihood. In then saying that the level of recidivist risk 'cannot be safely found to be any different' (emphasis added) to its level at the time of the applicant's most recent removal from the Australian community, the Tribunal is fairly to be understood to be saying that the likelihood of reoffending is so high as to be unacceptable. In light of RDYQ FC, that was sufficient for the Tribunal to comply with Direction 99. 87 As has been said, the context afforded by paragraph 49 of the Tribunal's reasons is important to this conclusion. The applicant sought to minimise that importance by submitting that the paragraph is ambiguous, since it does not state what period of time the Tribunal is referring to when it referred to his 'recidivist risk'. But there was no need for the Tribunal to do so in paragraph 49. For at that point, it was not speaking in terms of any historical level of risk, but in terms of the risk it was required to consider under Direction 99, that is, the risk should the applicant be released into the community in the future as a result of successfully obtaining revocation of the cancellation of his visa. 88 The applicant also submitted that paragraph 49 should be read as indicating that the Tribunal had proceeded to find that it could not make a safe conclusion about recidivist risk. But that is conspicuously not the view the Tribunal expresses in that paragraph. The confusion comes later in the decision but, for the reasons I have given, it does not lead to the conclusion that the Tribunal failed to make an assessment of the likelihood of reoffending that had meaningful content. 89 While each case depends on its particular combination of facts, it is helpful to consider the features that distinguish this case from Jattan. Principally, they arise because in this case, the Tribunal: (a) introduced the subject by making it clear that it had reached a view that the risk of reoffending was so high as to be unacceptable; (b) consistently framed its discussion of the evidence in terms that indicated that the applicant had not persuaded it that he did not present an unacceptable risk; (c) as analysed at [82] above, used the crucial formulation 'his recidivist risk remains uncertain and, ultimately, unknown' in a context which indicated that what it meant by that was that the risk was unacceptable, because the applicant had not addressed it satisfactorily; (d) did not say that the risk was uncertain and unknown in its overall conclusion about the level of recidivist risk (cf. Jattan at [43], Tribunal's reasons paras 75-76); and (e) did ultimately say that it was expressing a view about future risk (it did not say anything like that in Jattan). 90 So while it is not possible to say what specific level of risk the Tribunal had in mind at the time of the applicant's 'most recent removal from the Australian community', when the reasons are read fairly as a whole, it is apparent that the Tribunal had formed the view that the likelihood of reoffending should the cancellation of the visa be revoked and the applicant be returned to the community was so high as to be unacceptable. It follows that, unlike in Jattan, the Tribunal's reasons manifest a view about the likelihood of reoffending which meant that it was able to meaningfully have regard to that likelihood as required by Direction 99. In that context, the Tribunal was not required to express that view in quantitative or qualitative terms. 91 There is no doubt that the Tribunal's reasons are badly expressed. As a result, there was a proper basis to put ground 2. But read in context of the rest of the decision, the offending passages in paragraphs 76 and 78(c) are surplusage. In the end, the applicant has not discharged his onus of persuading me that the Tribunal fell into jurisdictional error as contended in ground 2.

Disposition 92 The application will be dismissed, with costs. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Migration Act 1958(Cth)ss 499, 501, 501CA

JACKSON J: 1 The applicant is a citizen of New Zealand. In October 2020, a delegate of the first respondent (Minister) cancelled his Australian visa because the delegate determined that the applicant did not pass the character test, on the ground that he had a substantial criminal record (within the meaning of s 501(6)(a) of the Migration Act 1958 (Cth)). 2 The applicant made representations as to why the cancellation of his visa should be revoked, but in 2021 a delegate of the Minister decided not to revoke it. The second respondent, the Administrative Appeals Tribunal, affirmed that decision, but the Full Court set that aside and remitted the matter to the Tribunal: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. The applicant now seeks judicial review of a second decision of the Tribunal, which was made on the remitter from the Full Court. 3 The application is made on two grounds. The first impugns certain adverse factual findings made by the Tribunal, that particular conduct by the appellant was violent and threatening and that it comprised behaviour that caused its victims to be fearful. While the bases on which those findings were challenged in the originating application were numerous, in oral argument they were helpfully narrowed down to what I will call two limbs. The first limb is that the Tribunal misunderstood or mischaracterised its task, that being evidenced by the Tribunal's uncritical acceptance of the veracity of police reports which were before it. Instead, it was said, the Tribunal should have assessed the reports in the context of all the other available evidence and submissions so as to arrive at its own view as to their veracity or otherwise. The second limb of this ground is that, if the Tribunal intended to accept the reports uncritically, it should have put the applicant on notice of that intention, so that he had an opportunity to make submissions to persuade the Tribunal not to take that approach. This second limb thus resolves to a contention that in failing to put him on notice, the Tribunal denied him procedural fairness. 4 The second ground, added by an amendment sought (and not opposed) at the commencement of the hearing, was that the Tribunal fell into the kind of jurisdictional error that was found to have occurred in Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866 (Banks-Smith J). In that case, the Tribunal had made findings about the likelihood of Mr Jattan engaging in further criminal or other serious conduct which, in all the context, were held to be devoid of meaningful content. The applicant contends that the Tribunal has done something similar here and so has fallen into the same kind of jurisdictional error. 5 For the following reasons, the application will be dismissed.

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