DJY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Proceedings before the Tribunal 5 The applicant was represented before the Tribunal and gave evidence. In submissions made on his behalf to the Tribunal, it was conceded that the applicant had been convicted by a final judgment of a particularly serious crime. It was submitted that the refusal of a protection visa 'was neither reasonable nor [was he] a danger to the Australian community'. The submissions said that the applicant's 'prior offending and re-offending [had] been largely attributable to alcohol abuse' (para 10). The submissions then said (para 11): Central to this case is the issue of [the applicant's] reform and the ability to make out that he has made attempts to rehabilitate himself away from alcohol abuse and that he will continue to remain sober in the event that he be granted a visa and released [from] immigration detention. We submit that this has been made out. For example, [the applicant] has: - Attended AA courses whilst in prison (5.1 at Page 74 of the T-Docs) - Various certificate of attendance concerning alcohol addiction and anger management courses (see attached) 6 The submissions then dealt with the main issues that had led the delegate to find that the applicant was a danger to the Australian community. 7 The materials before the Tribunal included sentencing remarks in respect of certain of his convictions. They also included submissions that had been made by the applicant as part of the earlier process in which he had applied unsuccessfully to revoke the cancellation of his humanitarian visa. There is no suggestion that those matters were raised before the Tribunal or advanced as setting out matters that the applicant relied upon in support of his review application to the Tribunal. 8 In considering whether the applicant is a danger to the Australian community, the Tribunal provided detailed reasons addressing each of the following matters: (1) It cited a previous Tribunal decision to the effect that the question whether a person is a danger to the Australian community is one of fact and degree and that some relevant considerations include 'the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances … the criminal history … risk of re-offending and recidivism and the likelihood of relapsing into crime … criminal record … as a whole and prospects of rehabilitation' (para 34). (2) The Tribunal then indicated that it would consider each of those matters. (3) The Tribunal described the applicant as having a lengthy criminal history which commenced as a juvenile and as an adult his offending contained numerous convictions of a serious nature which include violence (paras 38-39). (4) The Tribunal quoted from sentencing remarks directed at the need for protection to the community having regard to the violent and serious nature of the applicant's offending. (5) The Tribunal considered the length of the terms of imprisonment imposed over the course of all the applicant's offending and found that their length and frequency indicated their seriousness (para 49). (6) The Tribunal dealt with mitigating or aggravating circumstances. It referred to the applicant's history of past trauma as a child having fled Sudan for Kenya (para 50). (7) In the context of dealing with mitigating circumstances, reference was made to information provided in support of the applicant's request for revocation of the cancellation of his visa (para 52), but not expressly to the submission relied upon in support of the review ground raised by the applicant in this Court. (8) Reference was made to the brutality that the applicant had witnessed including the senseless killing of his parents (para 52). (9) The extent, nature and period of offending was considered. (10) In dealing with the applicant's risk of re-offending and recidivism, the Tribunal addressed the applicant's evidence as to how he had changed during his period of custody of approximately five years (para 58). (11) The Tribunal dealt with whether the applicant was likely to be able to abstain from alcohol which had been a problem contributing to his past offending (paras 60-62) and concluded that if he resumed alcohol abuse there was a risk that he would commit further offences, including possibly violent offences (para 63). (12) The Tribunal then made reference to the remarks of the District Court judge who had sentenced him in 2014 and referred to his problems with drugs and alcohol and had also expressed a concern that if his unresolved emotional and psychological problems were not addressed it was unlikely that the applicant would be able to remain abstinent from alcohol and drugs (para 64). (13) The Tribunal accepted that the applicant had made substantial efforts to access all treatment options available whilst in detention (paras 65-68). (14) As to the consequence of the courses he had attended, the Tribunal found (paras 69-70, 72-74): The Applicant's attendance at numerous voluntary courses is positive; however, the courses were of short duration (and mostly appear to be over part of a day), with the certificates only recording attendance. The Tribunal does not have before it any comments from course facilitators as to the treatment gains made by the Applicant as a result of undertaking these courses. Additionally, whilst the Tribunal appreciates that the Applicant has made an effort to do all voluntary courses available to him, in the Tribunal's opinion there has not been an intensive enough focus on the Applicant's alcohol addiction, which has a strong relationship to his offending behaviour. Only two of the voluntary courses above appear to deal specifically with substance abuse and addiction. With respect to the Applicant's underlying emotional and psychological issues, the Tribunal also regards it commendable that he has sought to undertake counselling with a counsellor on approximately 11 occasions. However these are sessions with a counsellor and not a psychologist. The Tribunal is not satisfied that the Applicant has had intensive enough psychological treatment to deal with the underlying emotional and psychological issues which contributed to his abuse of alcohol and in turn to his offending. This is especially given Staude DCJ's comments that if the Applicant's emotional and psychological problems were not properly addressed it is unlikely that he will be able to remain abstinent from alcohol and drugs (T3, pages 65-66). Judge Staude noted that the Applicant required 'special and careful attention if there is to be any real prospect of rehabilitation'. In the Tribunal's opinion, whilst the Applicant has attempted to access all courses and treatment available to him in immigration detention, the short voluntary courses and counselling that he has completed to date fall short of the special and careful attention needed to sufficiently reduce the likelihood of the Applicant reoffending in the future so that he is not a danger to the Australian community. … Although the Applicant states that he is a changed man, and that he will not resume alcohol use, this resolution has been made in the context of immigration detention. Whether the Applicant has indeed controlled his alcohol problem, and whether he can abstain from alcohol if released into the community is uncertain. The Tribunal remains concerned that if the Applicant were released into the Australian community and resumes his alcohol consumption, there is a real and substantial risk that he will commit further offences, including violent offences. In summary, the Tribunal accepts that the Applicant has done his best to access rehabilitative courses available to him in detention. However, the Tribunal is of the opinion that the Applicant has received very minimal treatment for substance abuse and violent offending by attending voluntary courses of a very short duration, with only two of these courses dealing with substance abuse. The Applicant has not been able to obtain counselling with a psychologist to address his underlying emotional and psychological issues. He has only been able to attend approximately 11 counselling sessions with a counsellor. The Tribunal accepts that the Applicant endeavoured to obtain a report from his counsellor, but was not able to (transcript, page 11-12). There is also no objective evidence of any treatment gains made by the Applicant as a result of attending the short courses because they were not intensive courses where treatment needs and gains are assessed and measured. In the Tribunal's opinion, these short courses do not constitute the 'special and careful attention if there is to be any real prospect of rehabilitation' referred to in the passage above from the sentencing remarks of Staude DCJ (T3, page 66). Given the extent of the Applicant's alcohol abuse and its centrality in his offending, including violent offending, the Tribunal is of the opinion that more intensive treatment, including psychological counselling for his underlying psychological issues (as identified by the sentencing magistrate on 27 October 2014 - see T3, pages 68-69) due to his childhood trauma, is required in order for the Applicant not to be a danger to the community. (15) The Tribunal found that the length, nature and extent of re-offending and his failure to be deterred by court orders and terms of imprisonment and a warning that his visa may be cancelled tended to indicate a strong likelihood of future re-offending (para 75). (16) The Tribunal dealt with the family and community support available to the applicant which may assist in his reintegration and rehabilitation (paras 76-77). (17) The Tribunal concluded that the applicant was a danger to the Australian community on the basis of an express finding that if he was released into the community there was a real or significant risk of possibility of harm to one or more members of the Australian community that could be described as present and serious (para 83). (18) The Tribunal summarised the specific factors that were indicative of that risk in the following way (para 84): (a) serious nature of some of the Applicant's offences which include violence against members of the public; (b) length of the sentences imposed for his offending which included a period of detention as a juvenile, together with numerous concurrent sentences of imprisonment as an adult which again reflects the seriousness of his offending; (c) Applicant's lengthy and consistent criminal history over an approximate six year period including his failure to be deterred by court imposed orders, a warning that his Visa may be cancelled if he were to offend further, and custodial sentences; (d) risk of reoffending and recidivism and the likelihood of relapsing into crime given the Applicant's underlying emotional and psychological issues due to trauma, and his alcohol abuse which is connected to his offending. He has attempted some limited rehabilitation in immigration detention, but it falls short of the special and careful attention required; and (e) lack of a comprehensive plan if he were to be released into the community to prevent relapse and recidivism. 9 It is apparent from its reasons that the Tribunal had in mind the need to consider relevant mitigating factors and that it had to make an assessment as to whether there was a current risk to the Australian community. Although at a number of points the Tribunal made reference to the assessment made by the District Court judge as to the need for treatment for the applicant's underlying trauma and psychological problems, such references occurred in the context of undertaking a current assessment of the risk of re-offending taking account of the evidence the applicant gave to the Tribunal, the extent and seriousness of his past offending and the steps he had taken in the years since he was sentenced.

Ground 1: Substantial and clearly articulated argument 10 The Tribunal fails to perform its statutory duty and thereby commits jurisdictional error if it fails to take account of a substantial and clearly articulated argument advanced by the applicant: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ). 11 The claim made by the applicant is that there was a submission before the Tribunal concerning mitigating factors to be brought to account in assessing whether the applicant was a danger to the Australian community for the purposes of s 36(1C)(b) which provided, relevantly: A criterion for a protection visa is that the applicant is not a person whom the Minister [or the Tribunal on review] considers, on reasonable grounds … is a danger to the Australian community. 12 As has been noted, before the Tribunal was a written submission that had been made on the applicant's behalf in support of his earlier request for the revocation of the cancellation of his humanitarian visa. Although the submission formed part of that separate and earlier process it was included in the materials lodged by the Minister with the Tribunal. 13 In support of ground 1, three matters in the earlier submission were identified as matters that the Tribunal should have considered to be mitigating circumstances when it came to the applicant's serious offending, namely his plea of guilty at the earliest opportunity, the fact that his sentence was at the lowest end of seriousness for the crimes of aggravated burglary and assault occasioning bodily harm for which he had been convicted and the fact that he had been 18 and 19 years old at the time of his offending. 14 It was said that the Tribunal did not refer to these aspects of his sentencing for the serious offences in concluding that he posed a risk to the Australian community. 15 I do not accept that the matters referred to in the submissions were raised as substantial and clearly articulated arguments in support of the applicant's case before the Tribunal. The Tribunal was concerned with a review of the delegate's decision. In the absence of any other matter being raised, the issues raised by the decision are the matters that are in issue before the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]. The submissions for the applicant approached the matter on that basis. 16 Further, the three matters raised in the earlier submission were not of central importance when it came to assessing whether the applicant was a danger to the Australian community some five years after his serious offending. The main question for the Tribunal (as recognised by the submissions made on the applicant's behalf) was whether the operative factors that led to his past serious offending which had posed a danger to the community were factors that were likely to continue to operate. The question for the Tribunal was to assess the likelihood of that future risk at the time of the hearing. 17 The Tribunal addressed what it considered to be mitigating factors in its reasons. The Tribunal's reasons were careful, considered and logically structured. In that context it considered the length of the sentences that had been imposed. It did not need to refer to whether there might have been longer sentences for more serious offences of a kind not committed provided it addressed the nature of the offending. It did so. Although the Tribunal did not refer expressly to the age of the applicant as a mitigating factor in respect of his offending, it is plain from the reasons as a whole that the Tribunal considered the age of the applicant and the fact that certain of his offending had been as a juvenile. As to the fact that the applicant offered an early guilty plea, that was a relatively minor aspect not addressed by the delegate or by the submissions to the Tribunal. The Tribunal did deal with the applicant's own evidence concerning insight, remorse and reasons why he was not likely to re-offend. The evidence as to those matters at the time of the hearing was what was advanced to support his review application, not the fact of his early guilty plea (a matter principally relevant at the time of his sentencing many years earlier). 18 Finally, it is not the case that the Tribunal is to be viewed as having failed to have regard to all matters not referred to in its reasons. The Tribunal had before it the sentencing remarks of the District Court judge where the three matters relied upon to support ground 1 were referred to. The Tribunal quoted from aspects of those remarks that it considered to be significant. In that context, it is evident that the Tribunal adverted to the sentencing remarks. The failure to refer to other aspects of those remarks in the reasons is consistent with the Tribunal taking the view that it was the quoted aspects that were of significance. 19 The reasons of the Tribunal are evidence of the findings actually made, referred to and relied upon by the Tribunal in coming to its decision and that no finding, evidence or reason which was of any significance to the decision has been omitted: Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179 (French J) and to similar effect at 168 (Davies J). 20 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], Gleeson CJ said in relation to an equivalent statutory requirement to give reasons as pertained in the present case: When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out 'the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. 21 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47], French, Sackville and Hely JJ observed: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 22 In this instance, it is evident from the Tribunal's reasons that the issue of mitigating circumstances was not overlooked, nor were the matters referred to in the sentencing remarks. The Tribunal addressed the nature and circumstances of past offending. The way in which the reasons are structured does not suggest that the matters raised by the applicant were overlooked. Rather, the Tribunal in its reasons identified those matters which it considered supported its conclusions. The Tribunal dealt with the range of factors relevant to making the required assessment as to whether the applicant poses a danger to the Australian community in a logical manner. 23 In all the circumstances, the proper conclusion to draw is that the Tribunal addressed the matters raised by the applicant before the Tribunal in its submissions and by the evidence that the applicant gave to the Tribunal. Those were the substantial and clearly articulated arguments. Aspects of the earlier written submission were not of that character. In any event, as the three matters were in the sentencing remarks and those remarks were addressed by the Tribunal it may be concluded that those matters were considered. In part they have been addressed in the reasons as a whole. Otherwise, the failure to refer to them is consistent with a view by the Tribunal that they were not considered to carry significant weight when considered in the context of the extent and seriousness of the applicant's offending measured by taking account of the serious trauma that the applicant had faced as a young child. The Tribunal did not need to include material which it did not consider carried significant weight when it came to assessing the visa criterion concerning whether the applicant was a risk to the Australian community. It was a matter for the Tribunal to make those judgments and form those views. 24 Therefore, ground 1 has not been made out.

Ground 2: Failure to undertake the statutory task 25 In support of ground 2, the applicant placed particular reliance on the decision in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132. As was recognised by the submission, Splendido arose in the context of an application inviting the Minister to exercise the power conferred by s 501CA(4) to revoke a decision to cancel a visa. 26 The issue in Splendido was whether there was a basis in the material before the Assistant Minister to support the way conclusions were reached concerning Mr Splendido's likely future conduct if he was allowed to remain in Australia. Mortimer J (Moshinsky J agreeing) characterised a comparison between that material and the reasons as showing that the Assistant Minister engaged in nothing more than guesswork or speculation about Mr Splendido's likely conduct if he were permitted to remain in Australia: at [49]. The particular findings as to whether Mr Splendido posed an unacceptable risk to the Australian community were required to be based on probative material and in material respects they were not: at [52]-[53]. 27 In reaching the above conclusions, amongst other things, Mortimer J observed: (1) the bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events (at [77]); (2) there was an assumption in the Assistant Minister's reasoning that drug addiction would feature again in Mr Splendido's life, but there was no probative basis for this assumption. It was sheer speculation, based on the bare fact of Mr Splendido's convictions for drug-related offences around five years earlier (at [81]); (3) where there was no information about the circumstances of the offending, the Assistant Minister's finding that Mr Splendido's offending had escalated was also speculative and suffered from the same legal problem as the unacceptable risk finding (at [87]); (4) the Assistant Minister's own subjective opinion, formed without any apparent objective information (such as expert material) about the state of Mr Splendido's 'insight' cannot itself be used as probative material on which to base a further finding about likelihood of further offending (at [88]); (5) an absence of material cannot provide a probative basis for a finding (at [89]); and (6) conclusions reached by a sentencing judge could not be cherry picked to form the foundation for an assessment to be made by the Assistant Minister as the probative basis for the statutory decision to be made under s 501CA (at [93]). 28 Mortimer J described the circumstances in Splendido as 'an extreme and rare case' and it was an instance where the factors which the Assistant Minister found weighed in favour of revocation were 'overwhelming': at [96]. Further, as noted at [97]: … it is unusual that in a situation such as this, the repository of the power would not have access to some kind of information to provide a basis for an assessment which was obviously so central to the exercise of power: no sentencing remarks, no police summaries of the offending conduct, no evidence put before any of the courts which convicted Mr Splendido, no reports from Mr Splendido's time within the correctional system about his behaviour or rehabilitation, no parole records, no reports or correspondence from treating psychiatrists, drug rehabilitation therapists or the like. 29 The circumstances of the present case are vastly different from those which confronted the Court in Splendido. Further, the procedure is different. Where the Minister is invited to exercise the power to revoke the visa cancellation in exercise of the power conferred by s 501CA(4), there is no hearing and no opportunity for the applicant to give oral evidence before the decision-maker. In the present case, the Tribunal heard from the applicant. It considered the evidence he gave about the courses he had undertaken and his counselling sessions. It considered his plans for his future and his explanations as to why his past behaviour would not be repeated. The applicant was represented and was able to present material to the Tribunal and make submissions based upon an understanding of the issues as exposed by the earlier decision of the delegate. 30 Further, the Tribunal's findings were not without a probative basis. The Tribunal did not reason from a bare consideration of a list of the applicant's offending. Its findings were based upon a consideration of past sentencing remarks, the oral testimony of the applicant and a consideration of the nature of the courses that he had undertaken and the fact that the limited counselling he had received was not treatment for his underlying psychological issues. The nature and extent of the applicant's past trauma as a child was not in issue. Indeed, those circumstances were advanced as part of the applicant's explanation for his past offending. Nor was there any issue about his past alcohol use and the contribution it had made to his past offending. 31 In contrast, Mr Splendido had a lifetime of no offending until reaching his mid-forties and there was no evidence at all as to why his offending had commenced or whether those factors continued to pertain. In consequence, there was no probative basis upon which to form any conclusion as to future risk. There being no material upon which to form an understanding of the cause of the offending there was no basis to form a view as to what may happen in the future. 32 Contrary to the submission made, the Tribunal did not approach the matter on the basis that the applicant was, at the time of the decision, a risk to the community. Rather, it assessed the current risk. In doing so, there was no error in considering what had occurred in the past and the reasons and explanations provided for that past offending in order to evaluate whether those concerns were still operative or whether there had been some change. The Tribunal was not persuaded by the applicant's evidence and the nature of the limited counselling and courses that he had undertaken that there had been any change. To reason in that manner was to form a factual conclusion based upon the material before the Tribunal. It was a conclusion that could be formed by an administrative tribunal without expert testimony. The Tribunal's reasoning was to the effect that nothing had occurred to change the identified and undisputed underlying cause of the applicant's past offending behaviour and therefore there was a present and serious risk that the past behaviour would continue. 33 At a number of points, the submission advanced for the applicant in support of ground 2 took the form of claim that there was a lack of sufficiency in the material before the Tribunal to support the conclusions reached. The sufficiency of the material is a matter for the Tribunal to assess. The nature of the jurisdictional error alleged by ground 2 requires the applicant to demonstrate that there was no probative basis for the finding that the applicant was a danger to the Australian community. Ultimately, the Tribunal summarised the material that formed the basis for its conclusion as the five matters listed at para 84 of its reasons (quoted above). To a significant extent those reasons depends upon the nature of the applicant's past offending and the accepted reason for that offending being significant alcohol abuse. They also depend upon the finding that the applicant, through no fault of his own, has been unable to undergo proper treatment to address his admitted trauma and underlying emotional and psychological issues that are the reason behind his alcohol abuse. These are findings that are based upon admitted and probative material. 34 It was submitted that in the absence of any psychological or other evidence there was no probative basis upon which to reject the applicant's evidence that he was a changed man and that he would avoid alcohol which had been a significant factor in his past offending. Although expert evidence might be probative of that question, the probative material relied upon by the Tribunal is the past behaviour of the applicant and the lack of treatment for the underlying cause of the alcohol abuse. 35 Finally, the applicant called in aid the matters summarised by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 as being important in cases where a failure to meet a statutory requirement as to character may have the consequence of removal from Australia. There, at [3], the Chief Justice said: Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. 36 The reasons by the Tribunal in this case do not exhibit characteristics that give rise to a concern as to whether there has been a genuine consideration of the claims by the applicant. The reasons of the Tribunal are not aptly described as formulaic or involving the application of a checklist. The Tribunal's reasons display an engagement with the particular factual circumstances of the applicant. The Tribunal was not persuaded by the matters put forward by the applicant that the factors that have operated in the past to bring about his serious offending do not continue to operate. 37 Therefore the second ground must be rejected.

Conclusion and costs 38 The parties accepted that there was no reason why costs should not follow the event. Therefore, the application should be dismissed with costs to be assessed on a lump sum basis by a Registrar if not agreed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.