Ground 1.1 - that the Tribunal paid no regard to the applicant's stated abstinence from synthetic cannabis and his treatment for cannabis use
42 Ground 1.1 alleges:
The AAT paid no regard to the Applicants stated abstinence from synthetic cannabis and treatment for cannabis use.
(a) In his AAT hearing, the Applicant asserted that he no longer used synthetic cannabis and that he hates the drug.
(b) The Applicant had engaged in some drug and alcohol treatment.
(c) While the AAT made findings about the Applicants drug use, it did not expressly engage with the Applicant stated position that he was not using cannabis, or to his drug treatment.
43 This ground is in part based on the Tribunal's reasons (at [73]) which said:
The Tribunal accepts that the Applicant suffered from drug induced psychosis. The North Western Mental Health assessment contains the opinion of a mental health care professional. It is consistent with the use of drugs that have been identified in the course of the evidence. The Tribunal does not accept the evidence given by the Applicant concerning his drug taking and considers that it was far more extensive than he was prepared to admit. In the event that he is released into the community, there is a real risk that he will relapse into drug taking. This is a risk that he recognised himself when he referred to the term "cannabis" in the assessment form completed whilst he was in custody and referred to earlier in these reasons. However, he appears not to have come to terms with the fact and consequences of his drug taking.
The Tribunal's references to drugs and drug use must be a reference to the applicant's use of synthetic cannabis as there is no evidence that the applicant used any other drug.
44 As the applicant submits, the Tribunal's reasons (including at [47]-[51]) show that it relied on the following matters in making those findings:
(a) that the applicant signed the Corrections Victoria assessment form which states that cannabis might be an issue for him upon release from custody;
(b) the Tribunal's assessment that the applicant was reluctant to acknowledge that he had suffered a drug induced psychosis;
(c) the applicant's denial that he had used cannabis for very long, that his use was problematic, or that he had a disorder, issue or dependency on drugs;
(d) the Tribunal's assessment that the applicant tried to downplay or diminish the gravity of using cannabis by saying that he only used 0.2 grams per week, that synthetic cannabis was legal, and that the applicant has little regard to the legality of his actions;
(e) that the applicant was placed on a CCO with specific conditions requiring assessment and treatment for drug abuse or dependency; and
(f) at least arguably, the background of the Tribunal's other adverse credibility findings in relation to the applicant.
45 Against that the applicant points to his testimony before the Tribunal where he said:
(a) he only smoked cannabis for a few months before his offending conduct. He denied having a cannabis habit and said he only smoked it with his friends once a week and only used about 0.2 grams per week;
(b) he did not have a problematic pattern of cannabis use or a cannabis disorder in 2016, but to the extent that he did he had recovered from that now and was now "well";
(c) he was not sure that there was a connection between his cannabis use and his hallucinations at the time he committed the offences in 2016, and that his hallucinations were more likely to be related to his anxiety and depression; and
(d) in any event he no longer used cannabis and now "hated" it.
The applicant relies on the Holyoake letter to argue that he engaged in voluntary drug treatment while in immigration detention and that he had recovered from any problematic pattern of cannabis use.
46 The applicant argues that the Tribunal made no reference to his evidence that he now "hates" cannabis and does not use it anymore, nor his evidence that he has recovered from any problematic pattern of cannabis use including by engaging in drug and alcohol treatment, as shown by the Holyoake letter. He says that shows that the Tribunal did not engage with his evidence and submissions in relation to those matters.
47 The applicant also argues that cl 11.1.2(3)(b)(ii) of Direction 65 mandated that the Tribunal:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively…[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account…evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…
(Emphasis added.)
48 He contends that the Tribunal was required to have regard to evidence of any rehabilitation achieved by the applicant at the time of the decision and give weight to time he spent in the community since his most recent offence. He argues that the Tribunal's reasons show that it failed to do so, as they do not refer to the applicant's "rehabilitation by abstaining" from cannabis use or by engagement with drug abuse treatment through Holyoake, nor to the fact that he did not commit any further offences in the period between his release from remand on 8 November 2016 and being placed into immigration detention on 9 August 2017.
49 If the applicant is able to establish that the Tribunal did not engage with his evidence and submissions that may constitute jurisdictional error by failing to engage in an active intellectual process or by failing to give proper, genuine and realistic consideration to:
(a) a "substantial, clearly articulated argument relying upon established facts": see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed);
(b) a claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review": see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] (Black CJ and French and Selway JJ); or
(c) a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review": see ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] (Bell, Keane and Gordon JJ).
A failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction may also be characterised as meaning the decision-maker constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [35]-[39] (Mortimer J).
50 Whether any such error rises to the level of jurisdictional error will depend upon whether it is 'material'; in the sense that the error deprived the applicant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 (Hossain) at [25] and [30] (Kiefel CJ, Gageler and Keane JJ).
51 In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal) at [76] (Perram, Murphy and Lee JJ) the Full Court said:
The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account: Acts Interpretation Act 1901 (Cth) s 25D; s 501G of the Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37] and [69]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister's reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.
52 On a fair reading of the Tribunal's reasons I am not satisfied that it is appropriate to conclude that the Tribunal failed to give proper consideration to the applicant's evidence that he no longer uses cannabis and that he now hates it, nor his evidence that he had "recovered" and had also that he had engaged in some drug abuse treatment
53 First, it is abundantly clear that the Tribunal appreciated the applicant's claim that he no longer used cannabis and his assertion that, to the extent that he ever had a cannabis problem, he had recovered. This can be seen from the Tribunal's reasons:
(a) at [47], where the Tribunal noted the applicant's evidence that it "was not his intention to smoke cannabis";
(b) at [48], where the Tribunal said that the applicant sought to explain away the opinion of North Western Mental Health that he had experienced an acute episode of drug induced psychosis "by saying that he no longer used any drugs and that he did not consider that he had a psychosis";
(c) at [49], where the Tribunal noted the applicants claim to have "stopped using [cannabis] long ago" and that "he steadfastly denied that he had used it for very long, nor that it was problematic, or that he really had a disorder, issue or dependency on drugs"; and
(d) at [50], where the Tribunal said that the applicant "strenuously denied he had a [cannabis] habit".
54 Second, it is plain that the Tribunal broadly rejected the applicant's evidence in relation to the extent of his cannabis use, and the risk that he would again use cannabis. It did not accept his evidence that he used cannabis only for a few months shortly before his offending conduct, his evidence that he mistakenly signed the Corrections Victoria assessment form which states that cannabis use was likely to be a risk for him after release from custody, his denial that his cannabis use was problematic such that he had a disorder or dependency upon cannabis, nor his claim to have recovered from any problematic pattern of cannabis use.
55 This can be seen in the Tribunal's reasons:
(a) at [73], where it said that it did not accept the applicant's evidence concerning his drug taking and considered that it "was far more extensive than he was prepared to admit";
(b) at [48], where it said that the applicant was disingenuous in attempting to downplay the diagnosis by North Western Mental Health that he had suffered a drug induced psychosis;
(c) at [48] and [73], where it rejected the applicant's evidence that the handwritten response "cannabis" to the question in the Corrections Victoria assessment form was merely a mistake, and that he did not pay much attention to the form because he was in a hurry to be released. The Tribunal said (at [48]) that the applicant's testimony in relation to the form demonstrated a tendency on his part "to simply sign or do anything that he thought might advance his interests", and (at [73]) that by having "cannabis" noted on the assessment form the applicant himself recognised the risk that he might relapse into cannabis use;
(d) at [49], where it said that the applicant sought to deflect the nature and effect of his drug use;
(e) at [51], where it said that it was unlikely that Judge Hannan would have imposed a CCO that included specific drug abuse or dependency treatment and rehabilitation conditions unless her Honour considered he suffered from a serious drug problem. The applicant argues that the specific conditions in the CCO regarding assessment and treatment for drug abuse or dependency are "standard terms" for people found guilty of crimes linked in some way with drugs, but there is no evidence of that and the basis for that submission is unclear;
(f) at [73], where it said the applicant had not come to terms with the fact and consequences of his drug taking; and
(g) at [73], where it rejected the applicant's evidence that he had recovered from a problematic pattern of cannabis use and held in the event that he is released into the community, there is a real risk that he will relapse into drug taking.
56 The Tribunal's finding that the applicant's cannabis use was significant to his mental health difficulties was plainly open to the Tribunal. In fact, before the County Court the applicant had accepted that there was a relationship between his offending conduct and cannabis use. He relied upon the North Western Mental Health report in his County Court appeal, and did not there argue against the report's conclusions. The report records that in December 2016 the applicant was diagnosed as having suffered "an acute episode of drug induced psychosis that had residual symptoms", and in July 2017 he was provisionally diagnosed with "adjustment disorder with depressive features and Cannabis use disorder". The Tribunal's finding was supported by the applicant's submissions which relied on the North Western Mental Health report in support of an argument that his offending conduct took place in extenuating circumstances.
57 It was somewhat inconsistent for the applicant to attempt to downplay, before the Tribunal the significance of cannabis use to his mental health problems. In his evidence he said that on reflection he thought that perhaps the psychosis was more linked to his anxiety and depression, and that:
I'm not sure [if there was a connection between synthetic cannabis use and his hallucinations] but I was quite depressed actually because - and stressed about my like situation and already sad about - and I'm also sad my parents don't love me anymore and also in 2015 like I need money for like you know pay rent and stuff and I call my mum and she said kill yourself, and then I feel having suicidal thoughts and called police and ambulance, was taken to hospital, this happened but I don't know if there is much connection between that and after that I didn't even have that drug like I hate it so much.
58 In relation to his asserted "recovery" from any cannabis problem the applicant said that he "might [have] had [a problematic pattern of cannabis use/a cannabis disorder] at that time but I'm quite recovered from that now. I don't use it and I'm not sure if I had it anymore because I think I'm well now regarding…"
59 The Tribunal emphatically rejected the applicant's evidence in this regard. It said (at [48]-[49]):
…In the context of drug use, he was reluctant to acknowledge that he had experienced a drug induced psychosis. He did not accept the professional assessment in the North Western Mental Health document that was before him. He sought to explain it away by saying that he no longer used any drugs and that he did not consider that he had a psychosis. He gave a disingenuous answer that he thought the Psychiatric Registrar was saying that he simply had these conditions because he had been using cannabis. He even went so far as to say he wasn't using it when he saw her and only met her on two occasions. In effect, downplaying her professional opinion.
Further, to deflect the nature and effect of his use of drugs including cannabis, apart from reiterating that he had stopped using it long ago, he steadfastly denied that he had used it for very long, nor that it was problematic or that he really had a disorder, issue or dependency on drugs.
60 The Tribunal expressly accepted (at [73]) the diagnoses by North Western Mental Health and it did not accept that the applicant had recovered from his problematic history of cannabis use. It found that the applicant himself recognised a risk that he will relapse into drug taking when the Corrections Victoria assessment form was completed.
61 Third, it was not necessary for the Tribunal to take up the applicant's language that he "hated" cannabis and had stopped using it, or to make a finding in that regard. As I have said, it is plain that the Tribunal understood the applicant's claim that he had ceased using cannabis. Having regard to the Tribunal's broad rejection of the applicant's evidence in relation to his cannabis use it is not appropriate to infer that the Tribunal somehow missed and failed to consider this evidence. The more appropriate inference is that the Tribunal appreciated the applicant's claims that he used cannabis for only a short time and that he no longer did so and his claim that he had recovered, but did not accept them.
62 Fourth, there is little force in the applicant's contention that the Tribunal paid no regard to the evidence that the applicant had engaged in some drug abuse treatment, and failed to engage with that fact. The Tribunal made no reference to the applicant's attendance at the Holyoake program but the applicant's reliance on that omission is overstated. The Holyoake letter, the relevant part of which is set out at [35] above, shows only that the applicant completed a 12 week program which was predominantly alcohol and drug related. It did not say how extensive the program was, how many hours the applicant spent in it or anything about the extent to which, if it all, the applicant showed some recovery from his problematic pattern of cannabis use.
63 I am not persuaded that the absence of any reference to the Holyoake program shows that the Tribunal somehow overlooked it or missed the evidence in that regard. The more appropriate inference is that the Tribunal did not refer to the Holyoake letter because it did not consider it to be material to its decision. The Tribunal was not required to refer in its reasons to every piece of evidence and every contention made by an applicant: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]. There is no error in failing to refer to inconsequential evidence which could not be significant to the Tribunal's decision: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [98] and [111] (Robertson J) cited with approval in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [67]-[70] (Kenny, Griffiths and Mortimer JJ).
64 Relatedly, I do not accept that the absence of any reference to the Holyoake program shows that the Tribunal failed to have regard to evidence of "any rehabilitation achieved by the time of the decision" and thereby failed to comply with Direction 65. The Holyoake letter is not evidence of "any rehabilitation achieved". As I have said it says nothing about the extent to which, if it all, the applicant showed some recovery from his problematic pattern of cannabis use.
65 The applicant did not establish Ground 1.1.