Dalzell v Minister for Immigration and Citizenship [2025] FCA 1470

1. Central to this matter is the Tribunal's consideration of paragraph 8.1.2(2)(a) of Ministerial Direction 110, which commenced on 24 June 2024:

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) ...

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

1. the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
   1. information and evidence on the risk of the non-citizen reoffending; and
   2. 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).
      1. ...

1. The Tribunal set out the applicant's offending history at R [6] and [7].
2. At R [8], the Tribunal set out the facts of the offending, as summarised by the sentencing judge, which led to the applicant being sentence to a custodial sentence of four years, as well as being disqualified from driving for four years.
3. The offending involved the applicant driving his vehicle into a lane that had been closed off for roadworks at night, whilst work was being carried out, and striking a works supervisor at a speed of approximately 88 km/h. The supervisor suffered extensive injuries. After striking the works supervisor, the applicant failed to slow or stop and continued for a further 200 metres in the closed off lane before colliding with a street sweeper which was operating at the time. At the time of that impact, the applicant's vehicle was travelling at approximately 76 km/h. The applicant was accompanied by a passenger in his vehicle. As a result of the collision with the street sweeper, the passenger suffered serious injuries. Both the applicant and his passenger had to be extracted from the applicant's vehicle by Emergency Services. The applicant recorded a blood alcohol content of 0.153g of alcohol in 100 mL of blood.
4. The nature of the harm suffered by the victims was a relevant consideration when it came to the Tribunal considering the nature of harm to the Australian community.
5. The section of the Tribunal's reasons which is the subject of this application is where the Tribunal dealt with the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct: paragraph 8.1.2 (2) (a) of Direction 110.
6. The Tribunal dealt with that matter between R [79] and [84], and the likelihood of the applicant engaging in further criminal or serious conduct between R [85] to [95]. The Tribunal's conclusion on the question of the protection of the Australian community is set out at R [96].
7. When considering the nature of the harm, the Tribunal commenced at R [80] by setting out the applicant's submissions which reflects what was put by the applicant in [20]-[22] of the applicant's Statement of Facts, Issues and Contentions:
   1. If the Applicant were to reoffend, it would likely be by committing an offence involving drinking and driving.
   2. While it is accepted that this type of offending can cause significant harm, as amply demonstrated by this very case, it is uncommon that this type of offending actually results in significant harm. There ought to be some tolerance of the risk that the Applicant will reoffend in this manner.
   3. The Applicant would not cause so much harm should he reoffend that any assessed risk of him doing so should result in this consideration being given determinative weight against revocation.
8. The Tribunal summarised the applicant's submissions at R [81] as being the applicant was, "... asking the Tribunal to accept the proposition that while he accepts that the nature of the harm that would be caused should he re-offend could be very serious, that outcome is extremely unlikely given the very low likelihood that he would reoffend (risk of reoffending being addressed further low (sic below)."
9. It is evident from the Tribunal's summary that the Tribunal identifies two points arising out of the applicant's SFIC, the first being the consequences of re-offending, and the second the risk of re-offending, with that latter point being considered later in the Tribunal's reasons commencing at R [85].
10. Continuing its consideration, the Tribunal set out at R [82] the Minister's submissions in relation to the nature of the harm to individuals or the Australian community should the applicant re-offend. Importantly, at [82(d)] the Tribunal notes the Minister's submission that "[i]f the applicant reoffended in the same manner, it is likely that it would result in significant harm to members of the community, including grievous bodily harm or death, which is so serious that any risk that it may be repeated is unacceptable." (emphasis provided)
11. At R [83], the Tribunal referred to the respondent's further submissions that driving with high blood alcohol levels or otherwise under the influence of alcohol is very likely to cause harm to the community with that harm including grievous bodily harm. The respondent also submitted that the applicant was severely impaired by alcohol while he drove.
12. It is against that background that the Tribunal said at R [84] that:

In the Tribunal's view, should the Applicant commit further similar offences, in particular offences involving drinking and driving, speeding and dangerous driving and drug-related offences, this would clearly result in further very serious harm that may cause considerable and widespread physical, psychological, emotional and economic harm to members of the Australian community.

(emphasis provided)

1. The applicant submits that in relation to further similar offending, by using the word "would" in R [84] (as opposed to "could") the Tribunal made a finding as to the certainty of harm that was not capable of being reached on the material before the Tribunal or on lawful grounds. The applicant submits that the finding was not based on findings or inferences of fact supported by logical grounds and as such can be characterised properly as unjust, arbitrary or capricious: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [21], [35].
2. The applicant submits there was only one conclusion open on the material before the Tribunal but which the Tribunal failed to reach, which is that there could be no certainty that re-offending in a similar fashion would result in serious harm to the community.
3. The Minister submits that the Tribunal made no such a finding.
4. The Minister submits that when read in context, it is evident that in R [84], the Tribunal was not identifying with any certainty that harm would arise if the applicant re-offended, but rather that re-offending in the same or similar manner "may cause" considerable and widespread harm to members of the Australian community. To that extent, the Minister submits that no finding was made by the Tribunal that as a matter of certainty if the applicant committed similar offences, in particular offences involving drinking and driving and driving related offences, it would result in further very serious harm.
5. I accept that submission. The Tribunal was considering the nature of the harm that may result from the applicant committing offences of the same nature as that for which the applicant had been imprisoned.
6. So much so is evident from the preceding discussion in the Tribunal's reasons where the Tribunal was considering the respective contentions of the parties.
7. Further, [21] of the SFIC conflates the two issues of the nature of the harm and the risk of re-offending.
8. By conflating the two issues, the applicant attempts to downplay one (nature) by reason of the other (risk). That position is unsustainable and not what is called for by 8.1.2(a) of Direction 110.
9. Whereas I accept that the various matters in 8.1.2 are to be dealt with cumulatively, it does not mean that the findings in relation to one of the components are to be diminished by the others. It means that all those factors are to be considered together.
10. Next, the Minister submits that the applicant refers to a single word in a single sentence and in so doing takes the paragraph out of context. The Minister submits that the Tribunal was concerned with the nature of the harm in that part of the reasons before dealing with the likelihood of the applicant engaging in further criminal or serious conduct before making its findings at R [94].
11. The Minister submits that focusing on the word "would" in R[84], is unfair and focuses upon the Tribunal's reasons, "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287.
12. I accept that submission.
13. The Tribunal was not expressing a view that serious harm would result in the event of similar offending as a matter of course. So much so is evident from the entire paragraph under consideration: R [84]. The qualification made by the Tribunal is that by reference to further similar offences, in particular involving drunk driving, speeding and dangerous driving, that the resultant very serious harm, "may cause considerable and widespread physical, psychological, emotional and economic harm". That is, the nature of the harm that may be suffered in the event of further criminal or serious conduct of the same type was as described.
14. That is also evident from R [94(a)] in which the Tribunal concluded:

1. The Tribunal has considered the available evidence and the parties submissions and make the following comments and findings:

(a) Given the significant risk of harm from driving offending and in particular, driving under the influence of alcohol, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general. This is particularly the case in circumstances where there is some uncertainty regarding whether the Applicant has completely abstained from alcohol since his offending in 2021 and where this abstinence has been untested in the community in more recent times. (Emphasis provided).

15. At R [96], the Tribunal concluded that the protection of the Australian community weighs heavily against the revocation of the cancellation decision. That was because, in part, of the nature and seriousness of the applicant's offending and conduct and also because of the risk to the Australian community should the applicant commit further similar offences.
16. A further matter that arose during the course of the applicant's submissions was the applicant's reliance on the transcript of the hearing before the Tribunal. That was raised not on the grounds identified in the application, however I received the transcript as part of the material before the Court on review.
17. The applicant contends that by reference to T 25-28 of the transcript of the hearing before the Tribunal, that the risk of the applicant re-offending which results in serious harm to members of the community is lower than the risk of him re-offending generally because the risk of the applicant re-offending is low. As I have noted, that conflates the issue of the nature of the harm with the risk of re-offending.
18. Nonetheless at T 26.6-26.9, the applicant's counsel accepted that if the applicant committed the offence of dangerous driving and causing grievous bodily harm then the nature of that harm would be very serious.
19. That is the point the respondent makes.
20. It is for these reasons that the applicant has not established that the Tribunal made a jurisdictional error.

1. The application should be dismissed and there will be an order accordingly.
2. The applicant is to pay the Minister's costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.