FDC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-04-02|Before: Abraham J

The application is dismissed.
The applicant is to pay the costs of the first respondent to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The applicant, a citizen of Zimbabwe, has resided in Australia since 6 February 2016, initially holding a student visa, and when that was cancelled a Class WA Subclass 010 Bridging visa as he had by that time filed a protection visa application. On 13 September 2018 the applicant was notified that his bridging visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis of s 501(6)(a), that the applicant had a substantial criminal record under s 501(7)(c) being sentences of imprisonment imposed on 6 June 2018 for offences of dishonestly obtaining financial advantage by deception. 2 On 8 January 2020 an application for revocation of the delegate's decision to cancel the applicant's visa was rejected. On 2 April 2020 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision not to revoke the visa cancellation. This is an application for judicial review of the Tribunal's decision. 3 Three grounds are advanced by an amended application: first, the Tribunal denied the applicant procedural fairness in respect to allowing the evidence of witness MY; second the Tribunal's decision to accord the expert report of Dr Yoxall no weight was "contrary to reason, illogical and irrational" because she could have given further evidence if called at the hearing; and third, the Tribunal denied the applicant procedural fairness by failing to "fully" consider his non-refoulement evidence and failing to warn the applicant that his failure to "fully" address non-refoulement would "be fatal to his application". 4 Although the applicant appeared unrepresented before the Tribunal he was represented in this Court. 5 For the reasons below, the application is dismissed. Factual background 6 The applicant has resided in Australia since 6 February 2016 although he had been in Australia since May 2015, initially studying for a Master of Information Technology at the University of Newcastle. The applicant had earlier obtained a Bachelor of Information and Systems Engineering at Cyprus International University. 7 From 12 May 2015 to 21 November 2016, the applicant held a student visa. On 18 November 2016, shortly prior to his student visa cancellation, the applicant applied for a protection visa. On 30 November 2016, the applicant was granted a bridging visa pending the outcome of his substantive protection visa application. I note that the bridging visa cannot be restored as a result of this proceeding. 8 Between October 2015 and June 2018, the applicant engaged in ongoing and multiple dishonesty offences for financial gain primarily by targeting overseas university students for which he received sentences of increasing severity in 2017, 2018 and 2019. 9 On 12 January 2017 an Intensive Corrections Order for 12 months and a s 9 Good Behaviour Bond for a period of 2 years was imposed on the applicant. 10 The offending continued over 2017 and 2018. On 6 June 2018 the applicant was further sentenced for 3 counts of dishonestly obtain financial advantage or cause disadvantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW) for which he was sentenced to 16, 14 and 12 months imprisonment respectively, the sentences to be served concurrently. 11 On 13 September 2018, the Department of Home Affairs notified the applicant that his visa had been cancelled under s 501(3A) of the Migration Act. That decision only relied upon the applicant's sentences of imprisonment on 6 June 2018. That decision did not refer to the applicant's further sentences of imprisonment imposed on 25 March 2019 by the Local Court, which were for the vast bulk of his dishonesty offending. 12 The applicant accepted in this Court that he has been convicted for 34 offences of dishonestly obtaining a financial advantage or cause disadvantage by deception. I note the Tribunal refers to it as being 32 offences. 13 The applicant's offending amounts to approximately $89,037.00.

Tribunal 14 The Tribunal's reasons for its decision are detailed, and given the nature of this review it is unnecessary to recite all the reasons in detail. Further detail is provided in considering the grounds for review. Suffice to say that in relation to each of the Direction 79 considerations the Tribunal recited the evidence and made findings before reaching a conclusion in respect to each. 15 As to the Direction 79 considerations the Tribunal concluded that: (1) as to the protection of the Australian community, this consideration weighed very heavily in favour of non-revocation; (2) as to the best interests of the minor child, this weighs slightly in favour of revocation but the Tribunal stated "I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a slight level only and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A"; (3) as to the expectations of the Australian community, this consideration is of heavy weight in favour of affirming the non-revocation decision; (4) as to the other considerations, in respect to ties to the community the Tribunal weighed this as moderately in favour of revocation; as to non-refoulement, this did not apply but if it did it was of low weight in favour of revocation; as to impact on the victims, it found that the applicant's continued presence in Australia will adversely affect at least one victim and moderately weighed this factor in favour of not revoking the cancellation; as to impediments if returned, this weighs moderately in favour of revocation. The Tribunal considered that the totality of the weight attributable to all of the other considerations combined did not outweigh "the very significant combined and determinative weight I have attributed to Primary Consideration A [protection of the Australian community] and C [expectation of the Australian community]". 16 The Tribunal concluded that a holistic view of the considerations favours the non-revocation of the cancellation of the applicant's visa.

Ground 1: procedural fairness and the witness MY 17 This ground alleges that the Tribunal "erred by failing to accord procedural fairness by acting in a manner giving rise to a reasonable apprehension of bias by receiving evidence from a witness [MY] which was clearly prejudicial on its face and the evidence which was received orally without giving the applicant sufficient notice". 18 The crux of the applicant's submission was that the affidavit of MY was "entirely prejudicial" and should not have been received. 19 MY was a victim of the applicant's offending. On 25 March 2019 the Waverly Local Court made a compensation order in his favour of $9,718. 20 The applicant submitted that the relevant context was that MY made contact with him and offered to assist in the preparation of the applicant's matter before the Tribunal as he was a law student but was seeking a small payment by the applicant as some type of measure of good faith with respect to the money owing under the compensation order. The applicant initially agreed to make a payment of $250 however he later contacted MY and told him he would be unable to pay the agreed amount. MY then affirmed an affidavit dated 17 March 2020 (1 day before the Tribunal hearing) which was served on the applicant at the Villawood Immigration Detention Centre after 5.00pm. The applicant submitted that MY "sought out the respondent's solicitor and asked to provide an affidavit in what can only be described as a desire on [MY's] part to damage the applicants case". 21 It was submitted that the first indication the applicant had that MY would be called to give evidence was in the respondent's opening in the Tribunal. The applicant complained that the "right to effectively cross-examine in the context of this case would have required a greater opportunity to prepare rather than being served with an affidavit the night before hearing and to be able to effectively test the matters raised by the deponent which were mere assertions by him". 22 The applicant submitted that without any formal application to the Tribunal the respondent advised the Tribunal about the witness' availability and that "there may be some sense in calling him today, even if he's being called out of turn". It was submitted that this approach was prejudicial because it assumed the witness would be called and that procedural fairness dictated that there would be an application to call the witness which the applicant could oppose. It was submitted that there was no opportunity afforded to the applicant to object to this witness being called and his affidavit being tendered. 23 The written submission also criticised the Tribunal's commending of MY in its reasons, and attributed to the Tribunal "a subtle bias pervading at the same time as the moment draws near to call [MY]". The applicant complained in his written submission that the Tribunal intervened in his cross-examination of MY on the basis that it was an endorsement of his evidence and conduct. These submissions were not referred to or expanded upon during the hearing. 24 The respondent submitted that the applicant does not fairly state the evidence of MY and what occurred during the Tribunal hearing. It referred to the principles as to procedural fairness in the context of the review by the Tribunal of non-revocation decisions under s 501CA(4) as summarised in Dharma v Minister for Home Affairs [2019] FCA 431 at [67]-[76]. The respondent submitted that MY's evidence was required to be considered by the Tribunal under Direction 79 and that the evidence was only prejudicial in that it reflected that the applicant's statements about being willing to repay victims the money he had taken, and that he was remorseful, are incorrect. The respondent also submitted that the applicant's cross-examination was not constantly interrupted, but rather the Tribunal intervened when it became inappropriately argumentative. 25 The applicant's submission cannot be accepted. 26 MY, one of the applicant's victims, was called as a witness by the respondent to rebut the submissions made by the applicant which appear in the "Statement of Facts, Issues and Contentions" filed by him in the Tribunal on 7 February 2020. The document included statements, inter alia, that he posed no risk of reoffending and that he intended to pay the victims back the money he had taken. For example, under the heading, "Impact on Victims" he stated that: Since I have been in detention, I am aware of a certain Mr [MY], who has issued an examination notice in relation to the money of which he has been defrauded. (See Attachment 5). While my incarceration may have brought some relief to the victims, it does not absolve me from the obligation of repaying them. I believe that repaying them will go a long way in helping them to heal from my dishonesty. I am determined to repay them all - no matter how long it takes. 27 The evidence of MY was plainly relevant and admissible. Moreover, the impact on the applicant's victims is a matter required to be considered by the Tribunal under Direction 79: 14.4(1), and the nature and circumstances of the offending and the risk to the community should the applicant reoffend: 13.1.1(f), 13.1.2. 28 It was not in issue that MY was a victim of the applicant's fraudulent conduct with the applicant owing him $13,000 in total. His evidence detailed the nature of the applicant's conduct in relation to the offence, that he had initiated court proceedings to recover the money taken, and the steps he had taken in that respect (and the applicant's conduct in relation thereto). His evidence was that the applicant approached him asking what statement he was going to give in relation to these proceedings. He told the applicant he intended to make a statement. To show MY that he had changed, the applicant agreed to make a payment to him of $250 (of the money owed) before the hearing date as a show of good faith. However, after initially agreeing the applicant later told MY that he was not willing to make the payment. 29 The applicant's contention that MY had, in effect, blackmailed him in relation to the $250 was properly a matter of weight, because it was dependent on an assessment of the witness as to whether what occurred was properly so characterised. The underlying factual matters did not appear to be in dispute. Rather, MY said that he would not have given evidence if the $250 was paid on the basis that it would reflect on the fact that the applicant had changed. That it did not occur meant from MY's perspective that the applicant had not changed, and so MY wanted to give evidence accordingly. 30 Contrary to the applicant's contention, he was given an opportunity to object to the evidence. At the outset of the hearing (at page 3 of the transcript) the following exchange occurred: CRPS: There is. Yesterday evening I got an email from the respondent's representative with a statement from [MY]. And they've said [MY] would be part of the proceedings. I wanted to just raise that I think [MY's] appearance or participant during these proceedings is not - I would not be okay with it. And the reason is [MY] has attempted to blackmail me for him to not to give a statement. So, I have some details here. I've put this with the New South Wales Police. So he has basically said to me, 'If you pay me $250, I will not give a statement.' And not giving - and me not paying him $250, that's the result of the statement. So, I don't know how the tribunal sees that. But that is what has happened. SENIOR MEMBER: All right. So, the tribunal understands what you've just said to mean that you're objecting to [MY's] evidence on the basis that it's been obtained, and I suppose, via some kind of blackmail against you. CRPS: Yes. SENIOR MEMBER: All right. I understand that. So I'll just hear from Mr Eskerie before we make a ruling on whether or not we receive [MY's] evidence. Mr Eskerie? MR ESKERIE: Yes, thank you, Senior Member. So, as I understand, the objection is on the basis that [MY] threatened that he would make this statement unless he was paid that amount. As it turns out, he has made that statement and there is no question that his evidence is relevant in circumstances where I don't think it's disputed that he was one of the victims of the offending. The question that the applicant raises, in my submission, goes to weight. It's obviously open to the applicant to put to [MY] the issue of the blackmail. And having heard that evidence, the tribunal can make a ruling on the weight that it wishes to attach to that affidavit evidence. SENIOR MEMBER: Thank you, Mr Eskerie. CRPS, I think that's right. And I think the tribunal should receive [MY's] evidence for a couple of reasons, and I'll explain them to you. I'll explain them so you're clear. CRPS: Yes. SENIOR MEMBER: The first thing is his evidence is relevant because it's something that's contemplated by the direction 79. Other consideration (d) in matters like this deals with evidence and weight that can be attributed to evidence that's given by victims of the crime of an applicant. In this case, [MY], as I understand it, was one of the victims of your offending. Therefore, his evidence is relevant for that other consideration (d) and should be received. The other factor why I think, and would rule, that [MY's] evidence can be received, is that you have the opportunity to cross-examine him about the alleged blackmail upon you, and you can draw that out in his evidence in cross-examination. Because, Mr Eskerie will make [MY] available for you to cross-examine. And then after you've finished cross-examining him, I can then form a view about what kind of weight to attach to his evidence. Do you understand that? CRPS: Yes, sir, I do. SENIOR MEMBER: All right. So, on that basis, I think we will proceed to receive [MY's] evidence, but of course it's subject to the applicant cross- examining him about the blackmail, or the alleged blackmail issues, that the applicant has raised. 31 As can be seen the Tribunal ruled on the objection, and the remaining exchanges between the Tribunal and the applicant about MY, which are relied on by the applicant (for example that referred to above at [22]), must be seen in this context. This passage also reflects that the applicant was willing and able to raise matters with the Tribunal. 32 The evidence having been admitted it was a matter for the Tribunal whether it would be accepted and what weight to attach to it: see [223] of the reasons. The Tribunal accepted MY was a witness of truth. The applicant took issue with a comment in the Tribunal's reasons commending the witness. That comment was in the context of a summary of MY's evidence and the Tribunal's findings, rejecting the applicant's characterisation of the events as blackmail. That comment is not a basis for establishing jurisdictional error. The applicant is complaining about factual findings. This is not a merits review: Leone v Minister for Home Affairs [2020] FCAFC 117 at [41]. 33 There was also the statement of another victim of the applicant's offending which detailed the impact on her of the offending, which was adverse to the applicant, which was relied on by the Tribunal: at [71]-[72]. The Tribunal also found that in contrast to his claimed commitment to make restitution the applicant was responsible for intentionally causing correspondence from victims seeking restitution from him to be returned to them without him ever receiving it: at [111]. I also note in this context that the Tribunal found, and the applicant conceded, he had misled the sentencing court by producing a document purporting to show he had made restitution to a victim by way of bank transfer which was, after the sentencing process found to be fraudulent: at [77]. This had been done to support the submission that the applicant was a changed person. 34 As to not having sufficient opportunity to prepare for MY's evidence, the transcript reflects the following: MR ESKERIE: The witness we propose to call, [MY], has indicated that he was available all day today and then available tomorrow afternoon, so he's not available in the morning tomorrow. It would seem to me, because we had asked him to be available to give evidence today, I need to indicate whether that remains the position, but I understood it did. If he is available today, I do wonder whether there may be some sense in calling him today, even if that means he's being called out of turn, so to speak, because we've got the psychologist for the applicant in the morning. That just means everyone is not just waiting around until tomorrow afternoon to hear his evidence. It seems to me that logically his evidence stands alone and there's no reason why it should be before or after anyone else amongst those remaining. SENIOR MEMBER: All right. I'm happy to receive [MY's] evidence this afternoon. I don't see any procedural difficulty with that. I don't think you would have any objection, would you, CRPS? CRPS: No, Senior Member. 35 The applicant did not at any time raise with the Tribunal that he did not have enough time to prepare to cross-examine MY or that he sought more time to do so. 36 I note also that before any witnesses were called there was a short adjournment during which, it appears from the transcript, the applicant and the respondent spoke about the timetable for the hearing with the respondent informing the Tribunal that: MR ESKERIE: But CRPS and I have had a discussion about what might be reasonable for everyone and we think that probably the sensible way forward is to first hear from another of CRPS's witnesses... SENIOR MEMBER: Yes. MR ESKERIE: And then, if we still have enough time to hear from [MY] and then, adjourn until the morning. Now, it was indicated to you earlier that the expert is available from nine to 10 in the morning. So, subject to your availability we were proposing that we aim to finish at 3.40 today, Sydney time, but then, resume at 9 am tomorrow. 37 In addition, after the lunch adjournment and shortly before the witness was called the Tribunal indicated he had a commitment at 4 pm being a court meeting for about half an hour but could resume after that for as long as the parties liked. The Tribunal made clear that it was entirely a matter for the parties if that occurred and the Tribunal first asked the applicant if he had any views. The applicant replied that he was "happy to continue, Senior Member, after". Although the evidence completed before 4 pm that day the conversation provided another opportunity to raise that he wanted time to prepare the cross-examination. Rather, agreeing to continue the hearing that day reflects that he was not prejudiced in his preparation. 38 It was open to the applicant to inform the Tribunal he needed more time but he did not do so: see for example, Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74 at [52]. 39 On the evidence it is apparent that the applicant was on notice that MY may give evidence, and on the applicant's evidence from two days before the hearing he was aware the evidence would be adverse to him. The applicant's cross-examination of MY focussed on the contact between himself and the witness in relation to the $250 payment. The details did not appear to be in dispute, rather it was the characterisation of the actions which was in issue. As noted above, that was a question of fact for the Tribunal. 40 There is no basis to the allegation that the Tribunal was biased because it permitted the evidence to be led or the manner or circumstances in which it was led. 41 Although the Tribunal did intervene in the cross-examination of MY, it summarised what it understood the witness to be saying in evidence. The summary was accurate. 42 The applicant has not suggested that there were other matters he would have put to the witness that he was prevented from doing, either because of the conduct of the hearing or lack of preparation. There is no basis to contend that a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). 43 There appears to be two other matters relied on by the applicant in his written submission as being evidence of bias. First, the Tribunal saying he had to attend a very important meeting "broadcasting his importance in deciding s 501 matters". Second, at the conclusion of the evidence of Mr Hunt, the applicant's support person, the Tribunal admonished him in a manner akin to a warning given to a witness under cross-examination: "Mr Hunt, just a final point, I must give you a warning to make sure that you don't discuss evidence with those witnesses who are yet to give evidence in this hearing. That's just an important procedural point to ensure the integrity of the hearing and the evidence that's received….". 44 Those matters, considered either singularly or in combination, do not establish any bias in the sense described in Ebner. No complaint was made during the hearing as to these matters. The Tribunal member referring to a meeting he had to attend is uncontroversial. It did so to explain why he needed to attend that meeting and related to the timetable of the hearing for the day. The complaint about Mr Hunt has no foundation as it is a standard warning given to witnesses. Although the applicant submitted that the Tribunal's tone might be considered in that context he did not place any evidence before the Court to support that submission. Finally, there is nothing in the manner in which the Tribunal conducted the hearing in permitting MY to give evidence which would found a basis for an allegation of bias. A consideration of the transcript more generally also does not support the applicant's contention. 45 This ground is not established.

Ground 2: procedural fairness and Dr Yoxall's report 46 This ground of review alleges that the Tribunal "erred in the exercise of its discretion by according no weight to the report of Dr Jacqueline Yoxall by reaching a conclusion which was contrary to reason, illogical or irrational in circumstances where Dr Yoxall was in a position to resolve any errors in her report". 47 Dr Yoxall is a psychologist who provided a report in support of the applicant dated 17 February 2020. Dr Yoxall was a witness for the applicant. The applicant submitted that the subject matter of the report was relevant to the issues of recidivism and propensity which was relevant to a consideration of a decision to revoke a decision to cancel his visa. It was submitted in preparation of that report and prior to her consultations with the applicant by AVL at Villawood Detention Centre on 23 January 2020 and 3 February 2020, she considered a large volume of documentation and had regard to numerous documents. Dr Yoxall confirmed in the report that she had received the Reasons for the Decision pursuant to s 501CA. It was submitted those reasons set out fully the applicant's history of offending but "state simply (it is submitted for reasons of brevity) the offences in respect of which the applicant was convicted and sentenced to imprisonment". It was submitted that the reasons encapsulate the offending in a like manner to Dr Yoxall: A National Criminal History Check report dated 3 October 2018 indicates that on 6 June 2018 [FDC19] was convicted in the Local Court of New South Wales of three counts of Dishonestly obtain financial advantage etc by deception, for which he was sentenced to 16, 14 and 12 months imprisonment respectively, to be served concurrently… 48 The applicant submitted that Dr Yoxall in her report has provided a "snapshot" of relevant criminal history and sentencing details which conformed to that provided by the Minister's delegate referred to above. It was submitted that the report reflects that Dr Yoxall took a very detailed history from the applicant about his offending. 49 It was submitted that the Tribunal questioned the findings of Dr Yoxall at [100] and "dismisses any value the report might have on the basis that one assessment tool relating to the offender's criminal history was the subject of a misapprehension on behalf of Dr Yoxall" at [101]-[102], questioning her representation that the applicant had four convictions rather than 32 convictions. The applicant contended that this factual matter could have been resolved when Dr Yoxall was being spoken to on the telephone in relation to her availability to give oral evidence. This is in a context, the applicant contended, where the respondent had raised in the Statement of Facts Issues and Contentions that: It is evident Dr Yoxall was not aware of the full extent of the applicant's offending, having made no reference to the applicant's 2019 convictions…Accordingly, no weight should be attributed to Dr Yoxall's conclusions on the applicant's risk of reoffending. 50 The Tribunal enquired of the applicant in relation to Dr Yoxall, the exchanges of which are referred to below. Suffice to say the aspect relied on by the applicant is as follows: ……he's going to tell me, most probably, not to give her evidence much weight, for oral reasons that he explains to me. And he's happy with doing that, and he doesn't want to cross-examine Dr Yoxall, right? So, that's why - and Mr Eskerie doesn't necessarily need Dr Yoxall here for the cross-examination. 51 It was submitted that is what occurred, with the Tribunal giving no weight to the report. It was submitted that procedural fairness required that because of the known issue about the recording of the offences in the report Dr Yoxall could have been asked to clarify that point when she was called on the telephone in relation to her availability to give evidence. 52 The respondent submitted that the Tribunal's analysis of Dr Yoxall's evidence was a fair reading of that report, and it did in fact rely upon Dr Yoxall's report as to her opinion about the risks posed by the applicant's severe and persistent gambling disorder. The respondent submitted that in any event it was the applicant who decided not to correct Dr Yoxall's understanding about the extent of his offending. The respondent submitted that the applicant, who is highly intelligent, decided to do that despite her report being obviously incorrect and the Minister's solicitor stating both in writing and orally that he would be relying upon this error as to the weight it should be given. 53 It is appropriate to put the exchange between the Tribunal and the applicant: SENIOR MEMBER: Right, thank you. Okay, now I'll start with CRPS. CRPS, we obviously have to reschedule Dr Yoxall. CRPS: Yes, Senior Member. SENIOR MEMBER: All right. Well, let me just work on that with Mr Eskerie. Just bear with me. Mr Eskerie, what do you propose? Obviously, we're in the hands of Dr Yoxall to a large extent. I'm trying to get her back today, if we can. I can also make time tomorrow, but I'd have to check my diary and see how we go there. What do you think, Mr Eskerie? MR ESKERIE: Yes, thank you Senior Member. From the Minister's perspective, we are content to proceed on the basis of Dr Yoxall's written report. I note the tribunal's general direction on experts and the indication that experts should not be called for oral questioning unless necessary and appropriate. I don't think, from the Minister's perspective, we need her to be questioned on her report. So it's entirely a matter for CRPS, whether or not he wants to question Dr Yoxall. If he does not, then the report can go into the evidence before the tribunal as it is. Now, if Dr Yoxall is called to give evidence, just a couple of indications. Firstly, I don't expect that I would have any, or at most, more than one question for her. So I don't expect that to take very long at all. Secondly, I am in a string of hearings tomorrow in the Federal Circuit Court. And I can't, I'm afraid, get out of them. So, I think tomorrow will be a difficulty for me in that respect. SENIOR MEMBER: Okay. MR ESKERIE: Thank you. SENIOR MEMBER: Okay. So, for you then, Mr Eskerie, it's not essential that we obtain some time with Dr Yoxall for cross-examination. Not essential? MR ESKERIE: No, and I'm happy to accept her evidence as she's given in her written report. SENIOR MEMBER: All right. CRPS? CRPS: Yes, sir. SENIOR MEMBER: As you probably know, obviously Dr Yoxall is your witness and what usually happens, as I'm sure you know, is that your witness is brought or called into the hearing to give evidence in chief through you, or on your behalf, and then that witness is made subject to cross-examination by the other side's representative, in this case, Mr Eskerie. However, sometimes - and quite often, in cases like this - an expert is accepted - the written report is accepted into evidence by the respondent's representative, but the respondent then makes submissions on that evidence. Right? CRPS: Yes. SENIOR MEMBER: So I don't want you to be under a misunderstanding this morning that Mr Eskerie is going to holus bolus accept what Dr Yoxall says. He is going to - let's be frank about it - he is going to criticise her evidence, he's going to attack her evidence and he's going to tell me, most probably, not to give her evidence much weight, for oral reasons that he explains to me. And he's happy with doing that, and he doesn't want to cross-examine Dr Yoxall, right? So that's why - and Mr Eskerie doesn't necessarily need Dr Yoxall here for the cross-examination. The question for you is were there any further questions that you wanted to put to Dr Yoxall. Because, most usually, someone who calls a doctor, like you have, usually adopts that doctor's report as it is. Because, if you think about it, you can't add anything to that evidence, you're not the doctor, she is. CRPS: Yes. SENIOR MEMBER: So do you necessarily want her to come and give evidence? Or are you content for the tribunal to receive her very comprehensive report? CRPS: I'm content with the tribunal receiving her report. My question is, when, as you say Mr Eskerie is going to give his own opinion on this report, I would have an opportunity to respond. SENIOR MEMBER: Absolutely. CRPS: I'm happy with that. 54 This ground focuses on what the applicant said is an incorrect statement in the report as to the applicant's number of prior convictions, with Dr Yoxall referring to there being four convictions. However, there is nothing to suggest it is an error relating to the description of the offences as opposed to Dr Yoxall being under the impression that there were only four convictions. 55 In any event, it is necessary to put this in the context of Dr Yoxall's report and the Tribunal's consideration of it. The number of convictions was said to relate to a risk assessment test applied by Dr Yoxall which results in a numerical score, that score then being said to relate to the applicant's prospects of reoffending. The purpose of the measure is said to identify variables that can potentially be changed so as to reduce the risk of reoffending. The applicant's numerical score was in the class of scores which indicated a low to moderate risk of reoffending and low to moderate level of rehabilitation needed. It appears unlikely that Dr Yoxall mistakenly referred to the applicant having four convictions if in reality she was aware of 32 convictions. The report does not support such an awareness. I note the description of there being four offences occurs on more than one occasion in the report. At the outset of the report Dr Yoxall referred to the three convictions of 6 June 2018 which resulted in imprisonment, and under previous criminal history referred to the conviction for which the Intensive Corrections Order was imposed. In accordance with that, Dr Yoxall referred to four convictions in relation to applying the test referred to above. In her summary and conclusion Dr Yoxall referred to the three convictions which resulted in the cancellation of the visa. At no stage in the report is there reference to more than four convictions. Those are the offences referred to in the delegate's decision cancelling the visa, and his criminal history attached thereto contained those convictions (it being before a number of convictions imposed in 2019). As the applicant acknowledged, the report reflected what was in the delegate's reasons. However, there is no support for the applicant's contention that this was done in the interests of brevity, as opposed to it reflecting Dr Yoxall's understanding and the basis of her report. 56 More importantly, as is apparent from the passages recited below, the conclusion based on the test result is not reflected in Dr Yoxall's ultimate finding in respect to the risk of reoffending (or level of rehabilitation needed). Rather, irrespective of the result of the test, Dr Yoxall's conclusion relevantly included: Treatment of Gambling Disorder requires a comprehensive program of psychological intervention (using evidence-based strategies); possibly psychiatric treatment including psychopharmacological treatment of depression, obsessionality, and impulsivity; and social supports (e.g. gamblers anonymous); and arrangements in one's personal life to ensure transparency of behaviour and accountability (e.g. spouse managing finances). Whilst [FDC19] has commenced some aspects of the Gold Standard of treatment for Gambling Disorder, this has not been comprehensive and has not occurred in a sustained manner over time. 57 And further: In my clinical opinion [FDC19] has a diagnosis of Gambling Disorder (persistent and severe) which has caused significant financial, relationship and emotional turmoil in his life and that of his loved ones since shortly after he moved to Australia in 2015. ….. [FDC19's] static (historical risk factors) for reoffending are limited. His dynamic risk factors are relapse to Gambling Disorder and vulnerability to depression. Protective factors include ongoing treatment for Gambling Disorder, and family support. Employment and engagement in treatment would provide further protective factors. The key risk factor for reoffending is the Gambling Disorder. Resolution of this disorder would substantially reduce [FDC19's] risk of reoffending. If he does not address the Gambling Disorder successfully his risk of reoffending is high. If he does address the Gambling Disorder successfully his risk of relapse could be reduced to a low risk. In his period of incarceration and detention [FDC19] appears to have developed improved insight into the disorder and his offending. He has made what appears to be genuine and sustainable progress in attempting to improve his relationship with his wife, educate himself about the disorder and establish strategies to prevent relapse. However, his Gambling Disorder is currently in full remission because he is in a controlled environment. …. 58 The Tribunal concluded in respect to the report (citations omitted): 101. Page 24 of Dr Yoxall's Report marks the commencement of her "Risk Assessment" about recidivism. Dr Yoxall's discussion about risk assessment commences with an application of the risk assessment methodology she applied. Specifically, Dr Yoxall applied "The Level of Service Inventory - Revised (LSI-R)". That assessment methodology includes a series of ten domains. One of those domains includes an offender's criminal history. For the purposes of her report, Dr Yoxall noted "I understand that [the Applicant] has four convictions for dishonestly gaining financial advantage by deception." 102. The Applicant's criminal history makes it patently clear that Dr Yoxall has proceeded on a misapprehension. Indeed, the Applicant has something in the order of 32 convictions for offences of dishonesty involving the gaining of financial advantage by deception. Very significantly, this misapprehension led Dr Yoxall to apply the LSI-R methodology on an incorrect or inaccurate basis. She noted "his score on the LSI-R was 14 and is primarily related to the number of convictions and past mental health concerns and need for treatment." [My underlining] It is surely beyond argument that the number of convictions recorded against an applicant/patient before her is a key factor in Dr Yoxall's application of the LSI-R and her arrival at a rating or score for that applicant/patient's risk of recidivism. 103. Putting aside the incorrect unreliable application of Dr Yoxall's application of the LSI-R for the Applicant, the balance of Dr Yoxall's Report does the Applicant little or no favours in terms of Dr Yoxall's views about his risk of re-offending. At page 31 of her Report, Dr Yoxall notes "in my clinical opinion, [the Applicant] has a diagnosis of Gambling Disorder (persistent and severe) …". Also on that page, Dr Yoxall further notes: "… [The Applicant's] static (historical risk factors) for reoffending are limited. His dynamic risk factors are relapse to Gambling Disorder and vulnerability to depression. … The key risk factor for reoffending is the Gambling Disorder. Resolution of this disorder would substantially reduce [the Applicant's] risk of reoffending. If he does not address the Gambling Disorder successfully, his risk of reoffending is high. If he does address the Gambling Disorder successfully, his risk of reoffending could be reduced to a low risk." 104. Dr Yoxall's Report, therefore, on the question of the Applicant's risk of recidivism goes no further than making two basic points. First, his diagnosis of Gambling Disorder (persistent and severe) remains current, untreated, unmanaged, and unresolved. Second, his risk of re-offending is entirely dependent on him successfully addressing that disorder. Dr Yoxall makes it clear: "If he does not address the Gambling Disorder successfully, his risk of reoffending is high." 105. It would thus be unsafe to attribute any measure of weight, certainly no weight of a determinative nature, to the conclusions reached by Dr Yoxall about the Applicant's risk of reoffending. … 137. Were he to be returned to the Australian community, the environmental factors giving rise to the Applicant's propensity to offend - as a result of his gambling - will again be a presence in his life. As noted by Dr Yoxall, the Applicant's previous circumstances causing his very serious issues with gambling were: (1) a constant concern or worry about the level of his debts; (2) a mentality of winning at games of chance/gambling as a means of recuperating his losses; (3) uncontrollable urges to gamble; and (4) the repeated experiencing of negative emotions. All of those factors will the Applicant upon his return to the Australian community. 138. Viewed in its totality, were he to be returned to the Australian community, I am not convinced that the evidence in any way confirms the personal circumstances previously spawning his past offending will not again be front and centre in his life. As noted by the Respondent, these are the factors that will immediately confront the Applicant upon release: (i) the significant level of cumulative debt he owes to his victims remains a live issue as will, most likely, be the victims' intention to recover their money; (ii) the Applicant does not seem to have reliable employment waiting for him upon his release and his earning capacity will, at least in the short-term, be limited to what his wife can earn which, itself, is limited; (iii) the preponderance of the psychological evidence indicates the Applicant continues to experience negative emotions; and (iv) it would be unsafe to rely upon the lay evidence of the Applicant and his lay witnesses (none of whom are clinicians) about his apparent capacity to control his gambling urges, especially in circumstances where his impulsivity and predisposition towards gambling has not been tested in the broader community. 139. In assessing the Applicant's risk of re-offending, a decision-maker is required to "take into account available information and evidence on the risk of the non-citizen re-offending…". There is no such evidence before the Tribunal. There was no evidence adduced at the hearing to demonstrate that the Applicant's level of insight into the nature of both his offending and its causes was any greater than it was at the time of his sentencing before Ms Huntsman SM in mid-2018. 140. The inevitable conclusion to be reached about the Applicant's risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find. … 142. The Applicant's consistently very serious to extremely serious pattern of offending has been the predominant feature of his life in this country thus far. He has had the benefit of an apparently loving and supportive network for the entirety of that period. Sentencing judicial officers have imposed sentences designed to deter his offending and to curb his propensity to offend. He has: (1) failed to grasp the benefits of a supportive network; and (2) failed to experience any deterrent effect from the range of sentences imposed upon him. 143. His insight into the nature of his offending and its impact on the lives of his victims is poor. Reasonable attempts by victims to recover their money or, at least, to start some kind of official dialogue about recovery, are met with dismissive silence or, in the unfortunate case of the victim Mr MY, a complaint to the police about Mr MY's attempt to recover a small portion of the approximately $13,000 unlawfully taken from him by the Applicant. 144. His offending has been both very frequent and, from its commencement, very serious to extremely serious. In terms of treatment, rehabilitation and management of symptoms predisposing him to offend, the cumulative state of any clinical / psychological evidence is that he is nowhere near convincing this Tribunal that he has meaningfully engaged with any therapeutic or other intervention-based process that could have the effect of lessening his risk of re-offending from its present high level. Even the evidence of Dr Yoxall, at its highest, regards the Applicant's risk of re-offending as high. There is no other finding that can be made about Dr Yoxall's evidence due to the unconvincing state of the evidence about whether this Applicant has effectively and successfully addressed his severe and persistent gambling disorder. 145. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that: (1) the nature of the Applicant's offending conduct to date is extremely serious; and (2) there is a strong and convincing likelihood that he will engage in further very serious to extremely serious conduct if returned to the Australian community. 59 The applicant requested that a psychological report be prepared by Dr Yoxall. The applicant was on alert prior to the hearing of the submission the respondent was going to make in relation to the weight to be attached to the report. It is plain from the respondent's Statement of Issues, Facts and Contentions filed in the Tribunal. 60 The applicant expressly addressed the issue in his reply to the respondent's Statement of Issues, Facts and Contentions and put a submission as to why Dr Yoxall would have been aware of the other convictions. In that context, the applicant chose not to require Dr Yoxall, but rather to argue the matter in submissions. As noted above, Dr Yoxall was the applicant's witness, she had examined him and provided a report at his request and therefore he could have clarified this purported error with her before the Tribunal hearing. Indeed, it is apparent from the transcript (page 2) that the applicant had spoken with Dr Yoxall on the first morning of the hearing before the proceedings commenced. I note also that no evidence has been adduced in this Court as to what Dr Yoxall would have said if asked to address this error. That is, there is no evidence before this Court that Dr Yoxall took into account more than four convictions in the reaching of her conclusions recited at [56] and [57] above. 61 The applicant's submission that the Tribunal should have told him at the time that it was going to give Dr Yoxall's evidence no weight, is misconceived. The exchange with the Tribunal makes clear that the applicant was on notice that such submissions would be made, that he had an opportunity to make submissions, that the Tribunal would consider the submissions put and made clear the possibility of the submission being accepted. However, at the stage of the hearing when the exchange takes place, the Tribunal had not heard the submissions of either party and had not reached the stage of forming conclusions as to the various issues. 62 In so far as the applicant contended in his written submission that the Tribunal exhibited bias including by deferring to the respondent's position as to whether Dr Yoxall would be called and by failing to inform him that it intended to accept the respondent's submission and accord no weight to the report in respect of that issue, the submission has no factual foundation. 63 It will be recalled that the ground of review alleged error by the Tribunal by according no weight to the report of Dr Yoxall "by reaching a conclusion which was contrary to reason, illogical or irrational in circumstances where Dr Yoxall was in a position to resolve any errors in her report". 64 Findings were made by the Tribunal on the findings in Dr Yoxall's report. The Tribunal properly describes the report as not being favourable to the applicant (see [58] above). That is so despite any purported error. That said, it is clear from the reasons (including those recited above at [58]) that the report was not considered in isolation by the Tribunal in its assessment of the applicant's offending and conduct, and his risk of reoffending. The Tribunal made findings as to the applicant's conduct, which included rejecting aspects of the applicant's evidence including his statements as to his conduct: for example at [52], [53], [93], [110]-[113]. 65 Before leaving this ground it is necessary to address a submission made during the hearing alleging that the Tribunal failed to consider a passage in a sentencing assessment report dated 5 March 2019. This contention is not in the ground of appeal and was not referred to in the written submission. 66 The brief report prepared by a Community Corrections Officer for the purposes of sentencing makes the statement that the applicant was assessed at Tier one medium/low risk of reoffending (according to the Level of Service Inventory - Revised). The report provides no further explanation of what that was, or the reason for that conclusion. The report is limited in nature and does not address the issues such as the gambling disorder which underpinned Dr Yoxall's conclusion. 67 In any event, as is apparent from the passages recited at [56] and [57] above, Dr Yoxall did not ultimately find that the applicant was a low to medium risk of reoffending, rather that was the result of one test she applied. 68 It is not necessary for the Tribunal to refer to every piece of evidence before it in reaching its conclusion: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [48]-[49]. In this case a failure to refer to the report prepared by a Community Corrections Officer does not give rise to the inference in this case that it was not considered. 69 This ground is not established.

Ground 3: non-refoulement considerations 70 This ground alleges the Tribunal "erred by failing to accord procedural fairness by failing to fully consider non-refoulement evidence and failed to warn the applicant that his failure to fully address non-refoulement would be fatal to the consideration of his application". 71 The applicant has separate proceedings in relation to his protection visa currently listed for judicial review to be heard on 2 September 2020, from a decision of the Federal Circuit Court. At the time of the hearing before the Tribunal those proceedings were pending in the Federal Circuit Court. The review relates to the refusal to grant a protection visa in circumstances where the applicant gives evidence that he did not receive the relevant Ministerial documents in the time required. The matter is otherwise unrelated to these proceedings. 72 The applicant's submission is that the issue is based on s 501CA(4) which requires an assessment to be made, distinct from the considerations relevant to an application for a protection visa, and forms part of the discretion required to be exercised by the Minister and the Tribunal in a decision to revoke the cancellation of a visa pursuant to s 501CA(4)(b)(ii) which is to be decided upon "another reason" why the decision should not be revoked. The test in s 501CA(4) is broader and can consider the risks alleged to be present to the applicant in a broader way than in respect to a protection visa and the Minister is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [48], [49]; and see Ali v Minister for Home Affairs [2020] FCAFC 109. The applicant also referred to the requirement in Direction 79, item 14.1(3) which states: Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled). 73 The applicant submitted the Tribunal misapplied or misunderstood the statutory regime in concluding at [203]: "[i]t follows that the Tribunal considers that the consideration of Australia's non-refoulement obligations is not relevant in this case and places no weight on this consideration". And at [208], "I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations … the Applicant is not a person in respect of whom Australia has non-refoulement obligations. Therefore the Tribunal would not have placed any weight on this consideration". It was [203] which was relied on most heavily, and that paragraph was said to be referrable to the delegate's decision. 74 The applicant also relied on interactions during the hearing with the Tribunal. It was submitted that the applicant should properly have been informed that the Tribunal intended to deal with the issue "in a dispositive way and the foundation reason for that approach". That, it was submitted, is a denial of procedural fairness. The applicant accepted that he misunderstood the issue when he was asked by the Tribunal about his non-refoulement claim and he answered that he should not discuss the issue because it is for judicial review. 75 The passages in the transcript particularly relied on as reflective of error are where the Tribunal asked the applicant "So, you don't want this Tribunal to give any weight or any consideration to your fears of harm" and "So, do you want - are you withdrawing - for the purposes of this hearing, are you withdrawing the fears of harm and if you are returned to Zimbabwe?". The applicant shortly thereafter stated "I'm open to the Tribunal giving what weight it sees relevant. But I think it is - I should not be commenting on that protection claim". 76 It was submitted that the Tribunal failed to consider matters which were relevant to the determination in a statutorily appropriate way. 77 The respondent submitted that the Tribunal's finding that non-refoulement obligations were irrelevant because the non-revocation of the bridging visa cancellation could not result in the applicant's refoulement was correct. The bridging visa had already expired and whether the applicant would be permitted to remain in Australia depended on the outcome of his appeal process in relation to his substantive protection visa application. The respondent submitted that in any event the applicant was on notice that he would be required to establish his claims of non-refoulement as this had been apparent from: paragraph 14.1 of Direction 65 which had been provided to him on 13 September 2018 (in the same terms as Direction 79); his submissions to the delegate; the delegate's decision; the respondent's written submissions to the Tribunal in February 2020; and the Tribunal's explanation as to why he had to answer questions on this issue at the hearing. 78 As this was a cancellation of a bridging visa the Tribunal proceedings could have no bearing on whether the applicant could stay in Australia: see for example: CPJ16 v Minister for Immigration and Border Protection [2018] FCA 450 at [58]-[61]. The Tribunal recognised that at best it may influence whether the applicant is permitted to remain in the community pending the resolution of his protection application. It was in that context that the Tribunal concluded at [203] that Australia's non-refoulement obligations were not relevant to the case and no weight was placed on them. The applicant's interpretation of [203] as relating to the delegate's decision is not borne out by a consideration of that paragraph in context. The applicant did not really address how these considerations were relevant given this was a bridging visa, and it has in any event expired. That the applicant may be entitled to another bridging visa (assuming all the stages of this application and any consequence reconsideration occurred in his favour) pending resolution of his protection application is not an answer. 79 In any event, the Tribunal did address non-refoulement considerations as it made an alternative finding in the event it was incorrect in its conclusion in [203]. 80 As noted above, the applicant declined to provide material on this issue to the Tribunal. The passages of the transcript relied on by the applicant occurred when the respondent was cross-examining him about matters which would be relevant to this consideration. In this context the following occurred: SENIOR MEMBER: All right then. Just a moment Mr Eskerie. What is it that you wanted to ask me, CRPS? ---Well, Your Honour, that was the question that I was going to ask. Because I was going to ask you - in relation to this protection hearing. Because I've been told that I should not - because this tribunal will not determine the protection case. And this case is pending at the Federal Circuit Court. So - yes the tribunal did find some - not in my favour. But they are listed as one of the respondents in the case that is at their Federal Circuit Court. So I wanted to - I just wanted to ask if that is correct. Because I don't want to - I know you would have more insight into this matter. Well, the tribunal has got to make a ruling on the claims of a fear of harm that you have, in the event that you are returned to Zimbabwe? ---Yes. How is the tribunal to determine or address those issues, unless you answer Mr Eskerie's questions. Or provide the details that he wants. That he is seeking? ---I'm of the view that this tribunal -if this tribunal says yes, CRPS, has claims of harm. They are valid. That goes against what the tribunal has decided already. So, that is my line of thinking. That this case is already at the Federal Circuit Court. So my own - in regards to this, I believe it is something that should not be given any weight. Because it is a case that is pending at the Federal Circuit Court. So, if - - - SENIOR MEMBER: So, you don't want this tribunal to give any weight or any consideration to your fears of harm - if you return to Zimbabwe. Is that what you're saying?---I'm saying I think it is - I - it is not possible for that to happen, if this case is pending at the Federal Circuit Court. Well, you need to be a bit clearer than that? ---Yes. Sure. So, do you want - are you withdrawing - for the purposes of this hearing, are you withdrawing the fears of harm and if you are returned to Zimbabwe? ---No, I am not. Well then how is this tribunal to determine the weight attributable to those fears that you say you have, if you are returned to Zimbabwe. How do we determine that for this proceeding? ---Well, I honestly think it is not possible, Senior Member. Because - like I said - this tribunal would have to find - would have to say the MRD Division is wrong. So, if this tribunal is going to give any weight to me - it is going to say the MRD has made a mistake. And I think that is not going to happen because this case is at the Federal Court level. So, I'm not withdrawing. I'm open to the tribunal giving what weight it sees relevant. But I think it is - I should not be commenting on that protection claim. Mr Eskerie? You'll leave that for submissions? MR ESKERIE: I think so. SENIOR MEMBER: That is right. MR ESKERIE: Just to confirm. Have I understood correctly, CRPS, that you want the tribunal to determine your claim - that you face harm in Zimbabwe. Just answer yes or no at each stage? ---No. You do not? So, you do not want the tribunal to make any finding about whether or not you face a risk of harm in Zimbabwe? ---This tribunal - yes. Yes, that is correct. So you do not want that? --- Yes. So then, is it your position that that issue is irrelevant to the tribunal's decision in this case? ---Yes. Because the case is pending at the Federal Circuit Court. That is what I think. And you are not prepared to provide any evidence or submissions going to that issue, before this tribunal? ---Yes. Another reason is - if this revocation does happen, this fear of harm is - whether revocation or if my visa is not revoked - that fear of harm does not - is not going to come into contention because I will be held in federal detention centre until my case is finalised. So, this non-revocation happening does not mean I'm going back to Zimbabwe. It means I am remaining in detention. As you have said earlier that this is mainly for the bridging visa. So, yes. So, just to unpack that and be clear about it - because it is important that we are. You say that a further and independent reason why Australia's non-refoulement obligations are irrelevant to this tribunal's decision, is because - even if you lose this case - it will not itself result in you being sent back to Zimbabwe?---True. What really matters, is whether or not you are successful in your protection visa application? --- True. All right. Thank you. I think the rest can be left for submissions. Thank you. 81 The applicant makes clear his reasons as to why he did not want to talk about the issues in respect to non-refoulement. I note that the applicant was also of the view (consistent with [203]) that it is not relevant because, as he said, he will not be returned to Zimbabwe, rather he will be returned to detention pending resolution of his protection application. 82 Although the Tribunal did note that the applicant, based on what appeared to be legal advice, refused to comment further on the protection claims, the Tribunal nonetheless considered the totality of the material before it in reaching its alternative conclusion. This related to the information before it which was before the Minister as to the applicant's claim of fear of harm were he to be returned to Zimbabwe. There is no basis to suggest that in undertaking that task the Tribunal misunderstood its task. Nor is there any basis to suggest, as contended in the ground of review, that the applicant's failure to provide information was "fatal to the consideration of his application". 83 Therefore, in the alternative, if relevant, the Tribunal concluded it was of low weight in favour of revocation: at [234]. 84 This ground is not established.

Conclusion 85 The grounds of review have not been established. The application is dismissed with costs. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

Crimes Act 1900(NSW)s 192E(1)(b)

Migration Act 1958(Cth)ss 501, 501CA

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