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[2013] FCA 1287
respondent. Application dismissed. The applicant was ordered to pay the first respondent's costs.
The Federal Court found no reviewable error in the Tribunal's decision to uphold cancellation of Mr Jagroop's visa. The Tribunal was not required to reopen its hearing after the applicant's representatives failed to correct its understanding about the psychologist's availability. The statutory limits governing this kind of migration review affected the operation of the usual document and submissions protections. Direction No 55 remained in force after a change of Minister, and the Tribunal had considered the relevant matters about reoffending, deterrence, parole and rehabilitation. The application was dismissed with costs.
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2,221 words · generated 28/09/2026
In Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287, Marshall J considered an application for judicial review of an Administrative Appeals Tribunal decision affirming cancellation of Mr Jagroop's skilled visa under s 501 of the (Cth). The delegate had found that he failed the character test because he had a substantial criminal record ([1]).
4 cited instruments linked from this judgment.
Mr Jagroop, a Fijian citizen, had lived in Australia since 2003. In December 2007, he pleaded guilty to criminally negligent manslaughter. The victim was his wife. His initial sentence was ten years' imprisonment, with a seven-year non-parole period; the Court of Appeal reduced this to eight years with a non-parole period of five years and six months ([4]-[6]). He was released on parole in December 2011 after serving five and a half years. The delegate cancelled his visa in January 2013, and he entered immigration detention ([7]).
The issues in the Federal Court concerned the conduct of the Tribunal's hearing and the considerations informing its decision. Mr Jagroop argued that the Tribunal had relied on adverse material after the hearing without giving him an opportunity to respond; wrongly refused to reopen the hearing to receive telephone evidence from psychologist Dr Cunningham; applied Direction No 55 after the Minister who made it had left office; took general deterrence into account; and failed to consider properly specific deterrence, parole, rehabilitation and the circumstances of his case ([2]).
Dr Cunningham's report assessed Mr Jagroop as a low risk of violent reoffending. However, the report was prepared without supplementary G documents that included material about alleged earlier violence towards the deceased ([16]-[27]). The Tribunal sought to question Dr Cunningham about his assessment, including the information on which he relied. His evidence was not obtained during the scheduled hearing. The Tribunal reserved its decision on 11 April 2013, and a request to reopen the hearing for a short telephone appearance on 15 April was refused ([33]-[45]).
The Federal Court dismissed the application and ordered Mr Jagroop to pay the first respondent's costs. It concluded that no alleged ground of jurisdictional error had been established ([108]).
The reopening issue turned on the interests of justice, the test drawn from Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] ([54]). Marshall J emphasised that the Tribunal's conduct had to be assessed against what it reasonably understood during the hearing, not simply against what later became known about Dr Cunningham's availability. The Tribunal believed Dr Cunningham would only answer written questions in advance, and the applicant's representatives did not correct that understanding ([55]-[56]). In those circumstances, the Court found no basis to interfere with the Tribunal's procedural decision not to reopen ([57]).
The post-hearing material ground required the Court to consider s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That section requires the Tribunal to give each party a reasonable opportunity to present their case and, in particular, to inspect documents the Tribunal proposes to consider and make submissions about them ([61]). The Court referred to O'Sullivan v Repatriation Commission (2003) 128 FCR 590 at [45] and Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 at [34]. Under Scorgie, the material must be relevant, and the Tribunal must propose to have regard to it in reaching its decision ([62]-[64]).
Marshall J distinguished the Tribunal's limited reference to the Nevotti article about the HCR-20 assessment from its use of the textbook's discussion of deterrence. The Tribunal had not relied on the article as a general criticism of the HCR-20, and the portion used was not adverse to Mr Jagroop ([65]-[68]). By contrast, it had used the textbook to counter the submission that a lengthy prison sentence would deter future offending ([72]-[73]).
The Court then considered the special requirements for Tribunal reviews under ss 500(6H), 500(6J) and 500(6L) of the Migration Act. Those provisions governed written information, supporting documents and the 84-day decision period. Marshall J concluded that the statutory scheme meant that a failure to comply with the second limb of s 39(1) would not necessarily invalidate the decision, particularly where the provisions prevented the Tribunal from receiving responsive submissions or documents in the ordinary way ([75]-[81]). The Court therefore rejected the procedural fairness challenge ([81]).
The Direction No 55 argument failed because a change of Minister did not cause the direction to expire. The Court read s 499 of the Migration Act with ss 19A(1)(c) and 20 of the Acts Interpretation Act 1901 (Cth). It reasoned that the direction was made by the holder of the relevant ministerial office, rather than by virtue of the personal identity of the Minister. Since the successor Minister had not revoked it, Direction No 55 continued to operate ([84]-[95]).
The Court also rejected the general deterrence ground. The Tribunal's reference to general deterrence appeared in its discussion of the textbook, but the Court found it had not been used in the ultimate risk conclusion. The list of matters in Direction No 55 was not exhaustive, and reference to general deterrence did not itself amount to jurisdictional error ([97]-[101]).
Finally, Marshall J applied the principle in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39: a relevant-consideration ground requires failure to consider a matter the decision-maker was bound to consider ([104]). The Tribunal had addressed specific deterrence, rehabilitation and parole in its reasons. The applicant's challenge was, in substance, directed to how much weight the Tribunal gave those matters. The Court held that this did not establish jurisdictional error, and the Tribunal was not obliged to refer separately to the specified provisions of the Victorian Sentencing Act 1991 ([105]-[107]).
The judgment's account of the law is framed around the statutory provisions and authorities before the Court in 2013. It does not purport to create a comprehensive code for all Tribunal hearings or all visa-cancellation decisions. Its conclusions are specific to the relationship between the AAT Act procedural obligation and the accelerated review provisions governing this kind of migration matter.
Before this decision, the authorities cited in the reasons established that s 39(1) requires a reasonable opportunity to present a case, inspect relevant documents and make submissions about them. O'Sullivan described the document-inspection limb as reflecting a clear statutory policy ([62]). Scorgie identified relevance and proposed reliance as the conditions for that limb to apply ([63]). Marshall J accepted those principles, but held that their effect had to be considered alongside the Migration Act's specific restrictions and deadline ([79]-[81]).
The decision's contribution on that point is cautious: a failure to meet the second limb of s 39(1) does not necessarily produce invalidity when the particular statutory scheme makes compliance impossible. The Court relied by analogy on Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [33]-[35] ([80]). The judgment does not state that time pressure alone removes procedural fairness obligations. Rather, it considers the interaction of identified statutory provisions in the circumstances before it.
On ministerial directions, the judgment held that Direction No 55 continued after the change of Minister because the statutory references related to the office and the direction had not been revoked ([87]-[95]). The decision therefore rejects the specific argument that a direction lapses merely because its maker leaves office. The Court discussed Attorney-General v Foster (1999) 84 FCR 582 and GG v Australian Crime Commission (2010) 182 FCR 513 in reaching that construction ([90]-[93]).
On relevant considerations, the judgment reiterates that judicial review is not an opportunity to reweigh matters the Tribunal did consider. The legal question is whether a consideration that the decision-maker was bound to consider was omitted, not whether the applicant considers it was given insufficient weight ([104]-[107]).
The judgment itself supplies no account of how later courts treated it. The later-court treatment of Jagroop therefore cannot be established from the material provided.
At [56], Marshall J said that the Tribunal's actions were to be assessed against its understanding of Dr Cunningham's availability, particularly because the applicant's representatives did not disabuse it of that understanding. In plain English, a procedural decision is not assessed with hindsight alone. What the Tribunal was reasonably told, and whether a party corrected a material misunderstanding, mattered to the Court's review.
At [61], the Court set out s 39(1)'s requirement that parties have a reasonable opportunity to present their cases, inspect documents proposed for consideration and make submissions about them. In plain English, the Tribunal has an express statutory obligation to provide a fair chance to deal with relevant material it proposes to use.
At [80], the Court observed that non-compliance with the document-inspection limb of s 39(1) would not necessarily lead to invalidity in this statutory setting. In plain English, identifying a procedural shortcoming is not always the end of the legal analysis. The Court also considered the specific statutory scheme and whether it allowed the Tribunal to receive the material the applicant would have offered.
At [89], Marshall J explained that a s 499 direction operates as a direction made by the occupant of the relevant ministerial office, rather than by the particular person who happened to hold that office when the direction was made. In plain English, a change of Minister does not, by itself, cancel an existing direction.
At [104], the Court quoted the principle from Peko-Wallsend that a relevant-consideration ground is made out only if the decision-maker fails to take into account a matter it was bound to consider. In plain English, an applicant cannot establish this ground merely by saying the Tribunal gave a matter too little weight.
The procedural reasoning is most relevant where a party argues that an administrative tribunal should have reopened a hearing to receive evidence after it has reserved its decision. The judgment makes the parties' communications and the Tribunal's reasonable understanding important. Here, the Tribunal had tried to arrange cross-examination, believed that the psychologist had imposed a condition on answering questions, and received no correction from the applicant's representatives ([34]-[43], [55]-[57]).
The s 39(1) discussion is relevant where a tribunal proposes to rely on material that was not raised during the hearing, especially in a statutory review process with strict rules about written material and a fixed decision deadline. The judgment's conclusion depended on ss 500(6H), 500(6J) and 500(6L) of the Migration Act, not on a universal rule that post-hearing material can always be considered without notice ([77]-[81]).
The ministerial-direction reasoning is relevant where a direction made under s 499 remains unrevoked after a change of Minister. The judgment treats the direction as attached to the ministerial office, rather than as expiring with its maker ([87]-[95]).
The relevant-consideration analysis is relevant where a party says that a tribunal failed to consider factors such as specific deterrence, rehabilitation or parole, but the reasons address them. The judgment distinguishes omission from disagreement about weight ([102]-[107]). It does not decide the factual risk of reoffending afresh; it reviews whether jurisdictional error was shown.
The supplied judgment contains no decisions after 29 November 2013, and it does not discuss any later judicial treatment of Jagroop. It is therefore not possible, on this material, to say whether later courts followed, distinguished, limited or questioned its reasoning.
The authorities Marshall J relied on are identified in the judgment itself. These include Bradshaw on reopening a hearing, O'Sullivan and Scorgie on s 39(1), Goldie, Milne and Daw in connection with the migration review scheme, and Peko-Wallsend on failure to consider a relevant matter ([54], [62]-[64], [75]-[80], [104]). Those are authorities considered by Marshall J, not evidence of how subsequent courts treated Jagroop.
The judgment expressly left unresolved whether a textbook is a “document” for s 39(1). The parties agreed that the textbook would qualify, so Marshall J said it was unnecessary to decide the point ([74]). That issue should not be treated as having been determined by this case.
The reasons also do not establish a general boundary for when the interaction between s 39(1) and the Migration Act's procedural restrictions will mean that non-compliance does not invalidate a Tribunal decision. The holding rests on the particular statutory provisions and the facts before the Court ([77]-[81]). How the analysis would apply if responsive evidence could be received, or if the relevant statutory deadlines differed, is not decided in the judgment.
The Court did not decide that general deterrence is always a relevant consideration in a s 501 decision. It held that Direction No 55 was not exhaustive and that the Tribunal's reference to general deterrence did not establish jurisdictional error in this case ([98]-[101]). The decision likewise does not decide what weight a tribunal must assign to a sentence served, parole, or rehabilitation evidence.
Finally, the Court reviewed the Tribunal's decision for jurisdictional error. It did not substitute its own assessment of the evidence or decide independently whether Mr Jagroop posed a risk of reoffending. The distinction between reviewing legality and reconsidering the merits is central to understanding the result ([105]-[108]).
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Counsel for the Applicant: Mr J Hammond QC with Ms M Clarkin
Solicitor for the Applicant: First Legal & Migration Services Pty Ltd
Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 385 of 2013
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
JUDGE: MARSHALL J DATE OF ORDER: 29 November 2013 WHERE MADE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 385 of 2013
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
JUDGE: MARSHALL J DATE: 29 NovembER 2013 PLACE: MELBOURNE
Introduction 1 The applicant, Mr Jagroop, applies pursuant to s 476A of the Migration Act 1958 (Cth) ("the Migration Act") for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent Minister to cancel Mr Jagroop's Class BQ Sub-class 139, Skilled - Designated Area Sponsored visa. The delegate found that Mr Jagroop did not satisfy the character test provided for in s 501(6) of the Migration Act given his substantial criminal record, as defined in s 501(7) of the Migration Act.
Issues for determination 2 The following issues arise for determination in the application: Did the Tribunal deny Mr Jagroop procedural fairness by: taking into account adverse material after the conclusion of the hearing without affording him an opportunity or reasonable opportunity to be heard in relation to such material? ("the post-hearing ground") refusing leave to re-open the hearing to take evidence via telephone from a psychologist who had provided a statement on which Mr Jagroop relied? ("the re-opening ground") Did the Tribunal take into account irrelevant considerations by taking into account and complying with Direction No 55, being a direction given by former Minister, the Hon Christopher Bowen on 25 July 2012? ("the Direction 55 ground"). Did the Tribunal take into account an irrelevant consideration, being general deterrence? ("the general deterrence ground") Did the Tribunal fail to take "validly into account a relevant consideration" namely, the "specific circumstances" of Mr Jagroop's case, being the effect of specific deterrence, rehabilitation and parole on the risk of him committing further criminal conduct if he was permitted to remain in Australia? ("the further criminal conduct ground"). 3 The Originating Application raised a further ground of review, asserting that the Tribunal's decision was manifestly "unreasonable". Mr Jagroop later abandoned that ground of his application.
Background 4 Mr Jagroop is a citizen of Fiji and is of Indian ethnicity. He was born on 6 September 1982. Having previously spent a short time in Australia in the mid-1990s on a tourist visa, Mr Jagroop re-entered Australia on 2 November 2003 as the holder of a skilled visa (referred to at [1] above). Apart from some return visits to Fiji, Mr Jagroop has resided in Australia since November 2003. A delegate of the Minister cancelled Mr Jagroop's skilled visa in January 2013. 5 On 4 December 2007, Mr Jagroop pleaded guilty in the Supreme Court of Victoria to one count of criminally negligent manslaughter. In February 2008, Justice Teague sentenced him to ten years' imprisonment with a non-parole period of seven years. However, in March 2009, the Court of Appeal reduced the sentence to eight years' imprisonment with a non-parole period of five years and six months. 6 In his sentencing remarks, Teague J described the incident which led to the offence. The victim was Mr Jagroop's late wife. She was 19 years old and had been married to Mr Jagroop for less than a year when she died. His Honour referred to a dispute between Mr Jagroop and his wife which occurred outside Mr Jagroop's parents' home and described the altercation and ensuing events as follows: You then pushed her with both hands; that caused her to fall onto the concrete footpath. You heard a noise of her head hitting the footpath. You saw that she was shaking. You got no response when you talked to her. You left her and went to your home. You went back to her. Blood was coming out of her mouth. You chose not to call for help. Instead, you dragged her to the other side of the road. On that side there is a slope. You dragged her down the slope. The slope leads down to a body of still water. You took her close to the water. You left her there. 7 On 21 December 2011, prison management released Mr Jagroop on parole after he had served five and a half years of his eight year sentence. On 23 January 2013, a delegate of Minister Bowen decided to cancel Mr Jagroop's visa pursuant to s 501 of the Migration Act. On 30 January 2013, the delegate notified Mr Jagroop of that decision. Mr Jagroop then entered immigration detention and is still so detained.
(a) The application before the Tribunal 8 To understand Mr Jagroop's contentions on the question of procedural fairness, it is important to set out how his application for review of the delegate's decision developed before the Tribunal. It is also important to bear in mind the provisions of s 500(6L) of the Migration Act, which have the effect that the Tribunal is taken to have made a decision affirming the delegate's decision if the Tribunal's decision is not made within 84 days after the notification to the applicant of the decision under review. Relevantly, in this case, the Tribunal was required to give its decision by 24 April 2013. 9 On 6 February 2013, Mr Jagroop applied to the Tribunal for a merits review of the delegate's decision to cancel his visa. 10 The parties approached the hearing before the Tribunal on the basis that Ministerial Direction No 55 - Visa refusal and cancellation under s 501 ("Direction 55") validly applied to it. Clause 6.1(3) of Direction 55 provides: The purpose of this Direction is to guide decision-makers performing functions or exercising powers under s 501 of the [Migration] Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under s 499(2A) of the [Migration] Act, such decision-makers must comply with a direction under s 499. 11 Direction 55 compels a decision-maker to take into account what are described in the direction as primary and other considerations. At cl 8(2) of the direction, the following is set out: In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. 12 The first of the primary considerations mentioned in Direction 55 is "protection of the Australian community from criminal or other serious conduct"; see cl 9(1)(a). Clause 9.1(2) provides: Decision-makers should also give consideration to: (a) The nature and seriousness of the person's conduct to date; and (b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. 13 One of the matters referred to in cl 9.1.2 is: The likelihood of the person engaging in further criminal or other serious conduct, taking into account: (i) information and evidence on the risk of the person re-offending; and (ii) evidence of rehabilitation achieved by the time the decision, giving weight to time spent in the community since their most recent offence…" 14 An important issue in the Tribunal hearing was the likelihood of Mr Jagroop engaging in further criminal or other serious conduct should he remain in Australia. Specifically, in this context, the Tribunal had to take into account the risk of Mr Jagroop reoffending and whether there was evidence of his rehabilitation at the time of its decision. In support of a submission by his counsel, Ms Clarkin, that Mr Jagroop presented a low risk of reoffending, Mr Jagroop relied on a statement supplied by a psychologist, Dr Aaron Cunningham. 15 Dr Cunningham's report is dated 18 March 2013 and is headed "Confidential Psychological Assessment". It refers to Dr Cunningham's assessment of Mr Jagroop at the Maribyrnong Immigration Detention Centre on 15 March 2013. The report details the information available to Dr Cunningham in completing his assessment. That information included documents provided to Mr Jagroop by the Minister known in the Tribunal as the "G documents"; see s 501G(2) of the Migration Act. 16 On 4 April 2013, Mr Jagroop was provided with a set of supplementary G documents including statements made by witnesses for the purposes of his committal hearing on the charge of murder, transcript of that proceeding and of the hearing before Teague J and victim impact statements, amongst other documents. Dr Cunningham did not, and could not, have accessed that supplementary material when he saw Mr Jagroop and provided his report. 17 Dr Cunningham's report refers to Mr Jagroop being administered the Historical Clinical Risk-20 ("HCR-20") test to "assess his risk of future violent offending". Dr Cunningham then said: The HCR-20 is a widely used, normed and validated risk tool within forensic psychology. The HCR-20 measures risk along twenty indicators under three domains. Each of these indicators has been found to correlate with violent recidivism within forensic psychological research literature. The HCR-20 has three risk outcomes: High, Moderate and Low. Under the Historical Risk Factor Scale, Mr Jagroop met the criteria for Previous Violence, Young Age at First Violent Incident and Relationship Instability. On the Clinical Risk Factor Scale, Mr Jagroop did not meet any criteria. On the Risk Management Scale, Mr Jagroop met the criteria for Stress. On the basis of the current HCR-20 risk assessment, Mr Jagroop presents as a Low-Risk of future violent offending [emphasis in the original]. 18 In the "Summary and Opinion" section of the report, Dr Cunningham said: Psychometric testing indicated cognitive functioning in the Average range and a Low-Risk of violent reoffending [emphasis in the original]. 19 Dr Cunningham went on to express an opinion that Mr Jagroop presents as a low risk of violent reoffending. In his conclusion and summary, Dr Cunningham said that "on the basis of HCR-20 risk assessment, Mr Jagroop presented as a Low-Risk of violent reoffending" [emphasis in the original]. 20 Ms Clarkin placed considerable emphasis on Dr Cunningham's report before the Tribunal. The report addressed a critical issue to be considered by the Tribunal which was the risk of violent reoffending by Mr Jagroop. Ms Clarkin referred to Dr Cunningham's report at [38] of the Applicant's Statement of Facts and Contentions and cited from it extensively to support the submission that the risk of Mr Jagroop reoffending was low. 21 In written contentions provided on behalf of the Minister before the Tribunal, the Minister's solicitor submitted that there was potential for Mr Jagroop to engage in further violent conduct. Those submissions referred to Mr Jagroop having previously abused his deceased wife, to the extent that she sought refuge at a safe accommodation centre and applied for an intervention order against him. The Minister contended before the Tribunal that the circumstances of the manslaughter did not constitute an aberration but followed a pattern of "demonstrably inappropriate conduct that occurred over a period of approximately three months". The statement of reasons provided by the Minister's delegate for the decision to cancel Mr Jagroop's visa is dated 23 January 2013. Dr Cunningham had access to that material in providing his report. The supplementary G documents (not provided to Dr Cunningham) contained the transcript of the Supreme Court hearing on 29 January 2008, in which the prosecutor provided a more fulsome description of Mr Jagroop's violent behaviour towards his wife prior to her death, including the circumstances of her seeking safe accommodation and applying for an intervention order. 22 Also included amongst the supplementary G documents was a report from a psychologist, Dr Simon Kennedy, who evaluated Mr Jagroop at Port Phillip Prison. In the concluding part of his report, Dr Kennedy observed that: There is [sic] no personality difficulties based on the current evaluation which are indicative of predisposing factors for violence. 23 Later in the report, Dr Kennedy said: …the likelihood of recidivism in this case is remote. 24 The supplementary G documents also contained the transcript of the committal hearing on 17 April 2007 in the Melbourne Magistrates' Court where witnesses gave evidence about Mr Jagroop's violent conduct towards his wife. The material included a witness statement of Ms Mandy Hampton. Her statement referred to an assault on the deceased by Mr Jagroop which resulted in the spillage of the deceased's blood. She claimed to have observed Mr Jagroop place his foot on his wife's head while she was lying on the floor in their home. Ms Hampton said Mr Jagroop only removed his foot from the deceased's head after he saw her enter the room where the altercation occurred. She also said that she saw the deceased with marks on her head, a cut lip and arm and noticed blood around the room. Ms Hampton was cross-examined on her evidence and was unshaken in relation to its contents. 25 The supplementary G documents also contained a statement from Ms Pritika Nair. The prosecution relied on that statement at the committal. It referred to a conversation between the deceased and Ms Nair in which the deceased told Ms Nair that Mr Jagroop had pushed her against a wall, bruising her head and cutting her arm and that he had kicked the deceased on her chest and on her face. At the committal, counsel for Mr Jagroop did not challenge Ms Nair on that aspect of her statement. 26 In addition, the supplementary G documents included a statement of Ms Constance Oladesu, a family violence crisis worker. Ms Oladesu referred to the deceased seeking refuge due to an assault on her by Mr Jagroop in March 2006. The statement referred to the deceased informing Ms Oladesu that due to several assaults upon her by Mr Jagroop, she did not feel safe with him and wanted safe accommodation. 27 The tenor of the relevant supplementary G documents was that the death of the deceased was the final step in an abusive violent relationship in which Mr Jagroop was the sole violent actor. Otherwise, he had no known prior history of offending. Dr Kennedy's view was that Mr Jagroop presented a low risk of violent reoffending, although, it is not known what sources of information were given to Dr Kennedy in order for him to form that view. Dr Kennedy's report refers to a letter of instruction from Mr Jagroop's solicitor and an outline of evidence. The date of Dr Kennedy's assessment post-dated the committal but pre-dated the plea hearing. These obvious inadequacies emphasised the significance of Dr Cunningham's report. 28 At the commencement of the Tribunal hearing on 10 April 2013, Ms Clarkin informed the Tribunal that Dr Cunningham was unavailable that day but was available on 22 April 2013. The Tribunal member observed that the 84 day period referred to in s 500(6L)(c) of the Migration Act expired on 24 April 2013. The member suggested that Dr Cunningham's evidence could be taken by telephone that day or the next day, 11 April 2013. The member observed that Mr Jagroop's lawyers had had "plenty of notice of the date of the hearing". 29 In the course of her submissions, Ms Clarkin referred to Mr Jagroop's lack of prior criminal history and other matters including that he "has served a lengthy prison sentence which acts as a deterrent". This submission was made in aid of a contention that the risk of Mr Jagroop violently reoffending was low, being a critical matter addressed in Direction 55. Ms Clarkin said: Significantly, the applicant has never been convicted of sexual offences, and undoubtedly, the Australian community does not have tolerance for those types of offences. It is submitted that the applicant should be permitted to remain in Australia, as he does not present a risk to the Australian community. The applicant did not have a history of offending prior to the crime he committed that led to his serving a prison sentence, therefore the risk of him reoffending is low. This is supported by the report by Dr Aaron Cunningham, forensic psychologist, who assessed the applicant and drafted a report dated 18 March 2013. I draw your, Senior Member's, attention to the summary and opinion towards the end of the report, which goes into detail about Mr Jagroop, and states, In my opinion, Mr Jagroop presents as a low risk of violent reoffending. 30 Ms Clarkin then discussed the contents of Dr Cunningham's report with the member. She said that she wished to call Dr Cunningham, after the member inquired as to how Dr Cunningham knew that Mr Jagroop had complied with his parole conditions. 31 Ms Clarkin then referred to the psychometric testing undertaken by Dr Cunningham including the HCR-20 assessment and his finding that Mr Jagroop presented as a low-risk of future violent offending. After referring to Dr Cunningham's report, Ms Clarkin returned to the submission that "the experience of serving a lengthy prison sentence, of five and a half years...provides a real deterrent to the applicant". The member then queried the assertion that prison has a deterrent effect saying, "I would think a lot of people might disagree with it". The member later raised a concern about whether prison has a rehabilitative effect and acts as a deterrent saying, "I'm sure there are statistics which would disagree with that". 32 Dr Cunningham's report was tendered as Exhibit A1. It thereby became a document which constituted part of the evidence before the Tribunal on the review of the delegate's decision. 33 Mr Jagroop gave evidence at the Tribunal, including evidence that he could not recall the violent event referred to by Ms Nair and discussed at [25] above. He also denied Ms Hampton's account of the violent incident to which she referred (discussed at [24] above). Mr Jagroop's evidence concluded at 1.00 pm on 10 April 2013. The member then asked Ms Clarkin to check on the availability of Dr Cunningham. The member said that he had a number of questions which he wished to put to Dr Cunningham. He reiterated that he would be prepared to take Dr Cunningham's evidence by telephone. After the luncheon adjournment, Ms Clarkin reported that she had been unable to contact Dr Cunningham. Her instructing solicitor also told the Tribunal that he had been unsuccessful in contacting Dr Cunningham but that he had sent an email to Dr Cunningham's personal email address and hoped that he would respond soon. 34 The solicitor for Mr Jagroop then asked the Tribunal if he could have "until tomorrow to give him the benefit of the doubt and see whether he can be available". The member accepted that position and arranged for the hearing to continue on the next day, 11 April 2013. Ms Clarkin called her remaining witnesses and commenced her final submissions with the rider that Dr Cunningham might be interposed. The solicitor for the Minister then commenced his final submissions. In those submissions, he referred to the fact that there is some conduct, like that of Mr Jagroop in respect of his wife, which is so serious that the consequences of it being repeated make any risk of repetition unacceptable. The solicitor for the Minister submitted that there was a real risk of Mr Jagroop reoffending if he remained in Australia. At this point in the Tribunal hearing, the member observed that Dr Cunningham did not have the benefit of the supplementary G documents when he made his report. The member then said: ….that was one of the reasons why obviously I think it's essential to have him asked about some of those matters that arise out of that material. 35 The Tribunal then raised with the solicitor for the Minister the usefulness of tests administered by psychologists to assess the likelihood of reoffending and said, "I want to see what the questions asked were. It gives you an insight into what the test is trying to show". In reference to Dr Cunningham, the Tribunal said, "That's another reason why we need him here". The Tribunal then embarked upon a discussion with the solicitor for the Minister about what exactly the HCR-20 test was, saying, "It's not one I've come across before". The Tribunal asked for assistance on what questions are asked in the test. The Tribunal adjourned to the following day, 11 April 2013, for the purpose of the cross-examination of Dr Cunningham and any final submissions. 36 On the resumption of the hearing on 11 April 2013, the member observed that he had been informed by his associate that Dr Cunningham would only attend the Tribunal hearing or respond to queries from the Tribunal if written questions were put to him in advance. This information resulted from an unfortunate misunderstanding. Dr Cunningham had, in fact, conveyed by email to Mr Jagroop's solicitors on 10 April 2013 that he was unable to give evidence on 11 April 2013 but "would still be able to present evidence at a later date or alternatively could write an addendum report addressing any issues when I am back in Melbourne tomorrow night". 37 The Tribunal told the parties that it could "forget about asking him questions" but that the probative value of Dr Cunningham's report would be "virtually zero". The Tribunal reiterated that Dr Cunningham would only be required for 10 to 15 minutes. The Tribunal said that the proceeding would resume at 2.15 pm to conclude the matter. Dr Cunningham had attempted to advise Ms Clarkin of his unavailability to give evidence on 11 April 2013, on that day, but Ms Clarkin had been unable to access her email at the time. Ms Clarkin did not attempt to address the Tribunal's misunderstanding about the basis on which Dr Cunningham would give evidence. Perhaps she was unaware of the true position, given that the communication was through her instructor and she may not have had the opportunity to speak to him about the matter. Her instructing solicitor was present at the Tribunal hearing on 11 April 2013, whilst Ms Clarkin appeared by telephone. The solicitor for Mr Jagroop also made no effort to correct the Tribunal's misunderstanding. 38 At 2.07 pm on 11 April 2013, Dr Cunningham's office manager sent an email to Mr Jagroop's solicitor saying that Dr Cunningham had no email or telephone access on 11 April 2013 but was available for 15 minutes on 15 April 2013, the following Monday. Mr Jagroop's solicitor did not receive this email on his mobile phone until he had left the Tribunal for the day. 39 Being unaware of the email which had been sent by Dr Cunningham's office only minutes earlier, after the luncheon adjournment, Ms Clarkin told the Tribunal that no further contact had been made with Dr Cunningham. 40 The Minister's solicitor then made submissions about the weight that should be attached to Dr Cunningham's report, saying that it should be given no weight or minimal weight. The Tribunal member then said that he had no understanding of what was in the HCR-20 test. The Minister's solicitor then went to the report which gave an explanation of the test, albeit not the precise questions asked in the test. The Minister's solicitor emphasised that, as he had not had the opportunity to test the evidence, it was unclear how Dr Cunningham had reached his conclusions. 41 Ms Clarkin urged the Tribunal to give weight to Dr Cunningham's report. She submitted that a low risk was an acceptable risk. Ms Clarkin's instructing solicitor, unaware of Dr Cunningham's office's recent email, reiterated Dr Cunningham's availability on 22 April 2013. The Tribunal member said that he was not available on that day and that it was too close to 24 April 2013 deadline imposed by s 500(6L) of the Migration Act. He put to the solicitor that Dr Cunningham's desire to have written questions in advance inhibited cross-examination. This was the point at which the solicitor should have disabused the Tribunal of its misunderstanding. Perhaps he had not carefully read the text of the email from Dr Cunningham referred to at [36] above, where he had made no such precondition to giving evidence. In any event, the solicitor failed to correct the misapprehension which the Tribunal had, concerning the basis upon which Dr Cunningham would be prepared to give evidence. 42 Ms Clarkin then made further submissions going to other matters. The Tribunal reserved its decision at 2.53 pm on 11 April 2013. 43 Shortly after the Tribunal reserved its decision on 11 April 2013, Mr Jagroop's solicitor became aware of Dr Cunningham's office's email sent at 2.07 pm. At 4.52 pm, the solicitor sent an email to the Tribunal member's associate, requesting in effect, that the Tribunal permit a re-opening of the case to allow Dr Cunningham to give oral evidence by telephone at 11.00 am on 15 April 2013. 44 By email sent to the Tribunal on 12 April 2013, the Minister's solicitor referred to his opponent's email of 4.52 pm on 11 April 2013. He said that whether the hearing was re-opened or not was a matter for the Tribunal but observed that the request was an unusual one. 45 Late on the afternoon of 12 April 2013, the Tribunal member's associate informed Mr Jagroop's solicitor that the application to allow Dr Cunningham to give evidence by telephone on 15 April 2013 was declined. The Tribunal published its reasons for decision on 19 April 2013. 46 The following paragraphs, which deal with the decision of the Tribunal, stress those aspects of it which concern Mr Jagroop's contention that the Tribunal denied him procedural fairness and/or breached s 39 of the AAT Act in the way it conducted the hearing. 47 At [51] to [98] of the Tribunal's decision, it dealt with the topic of the risk to the Australian community should Mr Jagroop reoffend. The Tribunal referred to cl 9.1.2 of Direction 55. At [68], the Tribunal said: …all of the evidence combined discloses that contrary to the applicant's own assessment of himself, he is capable of extreme violence fuelled probably by jealously and anger. The nature of the harm which the applicant is capable of inflicting on others is so serious that in my view, any real risk that it may be repeated would be unacceptable to the Australian community. 48 In that context, the Tribunal said at [69]: Given that I am of the opinion that any real risk of violent conduct, if repeated, would be unacceptable, I need to examine information and evidence which establishes the risk of the applicant re-offending and evidence of rehabilitation that may have been achieved by the time I heard this matter. 49 At [75], the Tribunal referred to Ms Clarkin's submission that, by serving a lengthy prison sentence, Mr Jagroop would be deterred from further criminal conduct. The Tribunal observed that that submission was not supported by any evidence. The Tribunal then referred to a contrary view expressed in the text book, Australian Sentencing: Principles and Practice (2007) by Edney and Bagaric published by Cambridge University Press ("the text book") at p 58 where it asserts: …the weight of evidence supports the view that subjecting offenders to harsh punishment is unlikely to increase the prospect that they will become law abiding citizens in the future. At [76], the Tribunal quoted from an additional passage in the text book which referred to the view of the Canadian Sentencing Commission that the certainty of punishment rather than its severity is more likely to produce a deterrent effect. 50 Further, the Tribunal referred to views expressed in the text book concerning the rehabilitative effect of imprisonment. At [82], the Tribunal referred again to Dr Cunningham's report. It discussed the report from [82] to [87]. Given the significance of those paragraphs for the submissions made on Mr Jagroop's behalf by his counsel in the current proceeding, it is appropriate to reproduce the full text of those paragraphs. The applicant also relied on the report prepared by Dr Cunningham which is dated 18 March 2013. Dr Cunningham assessed the applicant at the Maribyrnong Immigration Detention Centre on 15 March 2013. In his opinion, the applicant presented as a low-risk of violent re-offending. There are several problems with accepting what Dr Cunningham said in his report. The first is that Dr Cunningham was not available to be cross-examined regarding his report on the day set down for the hearing of this matter. Although Mr David McLaren, a lawyer with the solicitors Sparke Helmore who appeared on the behalf of the Minister, said he requested Dr Cunningham's presence for the purpose of cross-examination, I was told on the first day of the hearing that Dr Cunningham was not available. I asked solicitors for the applicant to make enquiries regarding the availability of Dr Cunningham to be cross-examined by telephone. Despite extensive attempts to contact Dr Cunningham, I was told that he was not responding. Therefore, at the conclusion of the first hearing day, I adjourned the hearing of this matter to 11 am on the following day to allow Dr Cunningham to be contacted. At the resumed hearing, I was informed that Dr Cunningham was not available for cross-examination although he was prepared to answer questions put to him in writing. I explained that this was unacceptable and did not permit proper cross-examination. I was also informed that Ms Clarkin was unable to be present due to a prior court commitment. I then adjourned the matter to 2:15 pm. Concluding submissions were then made by both parties. However, after concluding the hearing on 11 April 2013, I was informed that Dr Cunningham would be available to be cross-examined by telephone on 15 April 2013 at 11 am for 15 minutes. On 12 April 2013 I received an e-mail from Mr McLaren objecting to reopening the hearing. Attached to that e-mail were three letters sent by e-mail. They indicate that on 2 April 2013 solicitors for the Minister requested that Dr Cunningham be made available for cross-examination in person at the hearing. On 3 April 2013 the applicant's solicitor wrote to the Minister stating that Dr Cunningham was provided a complete copy of the G documents to enable him to conduct a clinical and forensic psychological evaluation of the applicant and then stated: you are welcome to subpoena Dr Cunningham to be made available in person at the hearing, as we do not intend to do so. On 5 April 2013 Mr McLaren again wrote to the applicant's solicitors requesting that Dr Cunningham be available at the hearing because he was concerned that there were matters about the preparation of his report and matters referred to in that report which required clarification. Mr McLaren said he was content to have Mr Cunningham cross-examined by telephone. He also said that if Mr Cunningham was not made available to give oral evidence, he would be making submissions at the hearing as to the weight that the Tribunal should afford the report. Given the history of the attempts to have Dr Cunningham cross-examined regarding his report, it was my view that Dr Cunningham was given reasonable notice prior to the commencement of the hearing on 10 April 2013 that he was required to attend the Tribunal for cross-examination. It should have been apparent to the applicant's solicitors that to allow Dr Cunningham's opinion evidence to be admitted without the opportunity to cross-examine would be unfair to the respondent. While this Tribunal is not bound by the rules of evidence, it is required to accord procedural fairness to both parties. The Tribunal had afforded Dr Cunningham a reasonable opportunity to be cross-examined. Therefore, it was inappropriate to set aside yet another day for that purpose particularly having regard to the 84 day time limit imposed by s. 500(6L) of the Migration Act which expires on 24 April 2013. Despite the absence of Dr Cunningham for the purposes of cross-examination, Mr McLaren did not object to his report being taken into evidence. However, he submitted that it should be given no weight. This was not only for the reason that Dr Cunningham was not cross-examined, but also because it was clear that Dr Cunningham did not have access to documents summonsed from Corrections Victoria when preparing his report. Those documents included the transcript of the committal hearing; the transcript of the plea hearing; the autopsy report from Dr Ranson; the statement of Ms H made on 17 June 2006; the statement of Ms N made on 19 June 2006; the statement of Ms O made on 27 June 2006; the statement of the applicant made on 10 June 2006; the transcript of the police interview with the applicant at several times during 10 June 2006; the statement of Ms K made on 10 August 2006; and copies of the statutory declarations purportedly made by the applicant's parents. I accept Mr McLaren's submissions regarding the weight which should be given to Dr Cunningham's report. In his report, Dr Cunningham set out the sources of information upon which he relied. The documents to which I have referred to above were not amongst those sources. The significance of this is that although Dr Cunningham administered a test to the applicant known as the Historical Clinical Risk - 20 (HCR-20), he did not have significant information which contradicted what he had been told by the applicant about his violence history. That test is a checklist consisting of 20 items. There are 10 historical or static unchanging items; 5 clinical or dynamic items that may change; and 5 risk management items that pertain to future circumstances (see: The Case Against the HCR-20, 2011, by Joseph R. Nevotti, Ph.D.). According to Dr Cunningham, the HCR-20 is used to assess risk of future violent offending. He reported that the applicant met the criteria under the historical indicators; did not meet any criteria under the clinical items; but met one of the criteria under the risk items. While it may be speculation on my part that the additional information to which Dr Cunningham was not privy would have altered the applicant's score on the HCR-20, it is difficult to believe that it would not have had any effect. In fact it is the uncertainty of the effect of that additional information which makes Dr Cunningham's report, without the opportunity to cross-examine, worthless. In my view, I should not rely on it. 51 At [89], the Tribunal dealt with a submission made by Ms Clarkin that being on parole was a sufficient deterrent against Mr Jagroop reoffending. The Tribunal responded by again referring to the text book where it deals with the function of parole and refers to Power v the Queen (1974) 131 CLR 623 and Bugmy v the Queen (1990) 169 CLR 525 ("the High Court cases"). The Tribunal at [93] said: …the release of a prisoner on parole cannot remove the risk of reoffending. It provides an opportunity for the prisoner to rehabilitate but it does not guarantee that rehabilitation will occur. 52 At [94], the Tribunal observed that its task under the Migration Act was to assess the risk of reoffending beyond the maximum sentence period. In its conclusion on the risk of Mr Jagroop reoffending, the Tribunal set out at [98]: …I find that the evidence discloses that the nature of harm to individuals or the Australian community should the applicant repeat his violent offending is so serious that even a low risk of that occurring in these circumstances would be unacceptable to the Australian community. In any event, despite a number of persons qualified to make a psychological assessment of the applicant finding he had a low risk of recidivism, all of those reports omit the full nature and extent of the applicant's prior violence history and the very disturbing extent of his propensity to be untruthful.
(b) The re-opening ground 53 The matters raised at paragraphs [8]-[52] above, inform the following analysis. 54 Counsel for Mr Jagroop contended that their client was denied procedural fairness by the Tribunal's refusal to permit a re-opening of Mr Jagroop's case to allow evidence to be taken from Dr Cunningham by telephone conference on 15 April 2013 at 11.00 am. It is not in dispute that the test to determine whether a reopening should be permitted is whether the interests of justice require that that opportunity be afforded by the Tribunal; see Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] per Kenny J. 55 The interests of justice did not require the Tribunal to reopen the matter in the circumstances before it. Mr Jagroop's legal representatives did not apprise the Tribunal of the true position concerning Dr Cunningham's availability to give evidence, including whether or not Dr Cunningham had placed any pre-condition on the manner of giving such evidence. The Tribunal believed on reasonable grounds that Dr Cunningham was not prepared to be cross-examined on a conventional basis but only if questions were put to him in advance. 56 The actions of the Tribunal are not to be judged in light of what was the true position as to the circumstances in which Dr Cunningham was prepared to be cross-examined but rather in light of what the Tribunal told the parties was its understanding of Dr Cunningham's attitude, in circumstances where those representing Mr Jagroop did nothing to dissuade the Tribunal from the views it expressed on this topic at the hearing. 57 No basis has been established to interfere with the Tribunal's discretionary decision, on a matter of practice and procedure, to refuse to re-open the matter. The re-opening ground is rejected.
(i) the content of the obligation on the tribunal provided by s 39 of the aat act 58 Mr Jagroop's counsel contend that their client was denied procedural fairness by the Tribunal taking into account and relying on adverse material without notice to Mr Jagroop and without giving him an opportunity or reasonable opportunity to comment on it. 59 It is not in dispute and is trite to say that the Tribunal has a wide duty to accord procedural fairness to those engaged in proceedings before it. However, precisely what the duty requires in a particular case will vary depending on the circumstances. 60 In oral submissions, senior counsel for Mr Jagroop fastened on the requirement in s 39(1) of the AAT Act that an applicant before the Tribunal is entitled to inspect any document to which the Tribunal proposes to have regard in reaching a decision in the proceeding. Counsel, in this context, refer to an article by J. R. Nevotti PhD called "The Case Against HCR-20" published in 2011 ("the Nevotti article"), the text book and the High Court cases referred to in the text book. In reality, there are only two categories of alleged adverse material because the High Court cases form part of the analysis undertaken in the text book. 61 Section 39(1) of the AAT Act compels the Tribunal to: …ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 62 In O'Sullivan v Repatriation Commission (2003) 128 FCR 590 at [45] Sackville J said: The first part of s 39(1) of the AAT Act has been said to be a statutory recognition of an obligation which the law would imply in any event... The second part (relating to the AAT's obligation to ensure that a party has an opportunity to inspect documents to which regard might be had), depending on the circumstances, might go further. In any event, it reflects a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents. 63 In Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 at [34] Marshall and Lander JJ said: The injunction in s 39(1) of the AAT Act requires the AAT to allow a party to the proceeding before the AAT to inspect any documents and to make submissions in relation to those documents to which the AAT proposes to have regard in reaching a decision. To attract the obligation in s 39(1) two things must be apparent. First, the documents must be relevant. Secondly, the AAT must be proposing to have regard to the documents for the purpose of reaching a decision in the proceeding. 64 In Scorgie, no breach of s 39 was found because the Tribunal did not have regard to the text and publications there in issue; see at [38]. Further, those texts and publications were found not to have played any part in the Tribunal's decision in the matter; see at [41]. 65 The Nevotti article and the text book both satisfy the test of relevance referred to in Scorgie at [34]. The Tribunal examined the Nevotti article in the context of explaining the content of the HCR-20 test. The Tribunal considered the text book in the context of dealing with submissions about the effect of a lengthy prison sentence and being on parole on the likelihood of reoffending in Mr Jagroop's case. 66 The Tribunal satisfied the second aspect of the test in Scorgie by having regard to the text book for the purpose of reaching its decision. This will be discussed further below. In contrast, it only made passing reference to the Nevotti article for the purpose of reaching its decision. The only information in the article on which the Tribunal placed express reliance was that contained in the first paragraph of the article which merely described the test as the Tribunal recorded it at [87] of its reasons. 67 The Tribunal made no further reference to the Nevotti article. There was nothing adverse to Mr Jagroop's interests in the portion of the Nevotti article referred to by the Tribunal in its decision. Although otherwise the article was critical of the utility of the test, the Tribunal did not rely on the article for that purpose and made no finding about the usefulness or otherwise of HCR-20 as a concept. 68 Moreover, the Tribunal only considered Dr Cunningham's administration of the HCR-20 test in the absence of material contained in the supplementary G documents which would have assisted Dr Cunningham in its administration. It was not the administration of the test per se which troubled the Tribunal, but its administration in the absence of important additional information. In this context, the Court notes the concession of senior counsel for Mr Jagroop that the Nevotti article was relied on by the Tribunal in "a very limited way". 69 The next issue to be considered in the context of s 39(1) of the AAT Act and [34] of Scorgie is whether the Tribunal had regard to the text book for the purpose of making its decision. 70 The Court deals with the question of parole first. The text book, where quoted at [90] of the Tribunal's reasons, merely refers to the purpose of the setting of the non-parole period or minimum term. That part of the text book (and the High Court cases there referred to) do not contradict the submission made to the Tribunal by Ms Clarkin as to the role of parole in reducing the chance of Mr Jagroop reoffending. The Tribunal made the uncontroversial observation at [93] of its reasons that the High Court cases demonstrate that release on parole requires a decision balancing the benefits of rehabilitation against the danger to the community raised by the risk of reoffending. 71 From the above analysis, it may be observed that the Tribunal did not have regard to the passage of the text book which referred to the purpose of parole in making its decision. That matter was not a question in dispute. Similarly, no contentious issue arose out of the material drawn from High Court cases. 72 Different considerations apply to the Tribunal's reliance at [75] to [77] of its reasons for decision on the text book to counter a submission made by Ms Clarkin about the deterrent effect of a lengthy prison sentence on the prospect of reoffending. In response to that submission, the Tribunal quoted from the text book where it argues that "the weight of evidence supports the view that subjecting offenders to harsh punishment is unlikely to increase the prospect that they will become law abiding citizens in the future". Immediately thereafter, the Tribunal referred to statements in the text book which downplay severity of punishment as a deterrent tool. The Tribunal at [78] to [79] then referred to the text book in the context of the wider question as to whether rehabilitation worked. 73 The Tribunal had regard to those parts of the text book which dealt with the relationship between harsh penalty and deterrence in coming to its decision. In its conclusion, the Tribunal found that there remained a real risk that Mr Jagroop will reoffend. The extent to which Mr Jagroop's time served in jail would not, of itself, deter him from further reoffending cannot be discounted as a non-factor in the Tribunal's conclusion. Prior to making its decision, the Tribunal must have been aware that it was proposing to have regard to the passage in the text book to counter Ms Clarkin's submissions on this topic. 74 The next issue which arises is whether the text book can be considered to be a "document" in the context of s 39(1) of the AAT Act. In Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351, a Full Court considered whether medical texts which had been put to an applicant before the Tribunal were documents for the purposes of the sub-section. It was not necessary for the Court in that case to consider that question. For reasons explained below, it is not necessary in this matter to determine whether a text book may be a document for the purposes of s 39(1) of the AAT Act. The Court notes, however, that counsel for the Minister concedes and counsel for Mr Jagroop agree that the text book would constitute a "document" for purposes of s 39(1) of the AAT Act. 75 In his written submissions, counsel for the respondent Minister relies on the judgment of Gray J in Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1 at [39]-[40] where his Honour considered a procedural fairness issue in the context of ss 500(6H), 500(6J) and 500(6L) of the Migration Act. In Milne, Gray J dealt with a submission that the applicant may have wished to put more material to the Tribunal but that the time constraints supplied by those sub-sections rendered that approach impossible. 76 Counsel for the Minister submits that if the Tribunal had invited Mr Jagroop to comment on the relevant passages of the text book, it would not have been able to consider such comment in response to that invitation. 77 If the Tribunal had sent a copy of the relevant parts of the text book to the solicitors for Mr Jagroop, s 500(6H) would have operated to prevent the Tribunal receiving any oral submissions in response because that section requires any information presented orally to be set out in a written statement to the Minister at least two business days before the Tribunal hearing. 78 Under s 500(6J), the Tribunal is prohibited from having regard to any document submitted in support of a person's case unless a copy of that document is given to the Minister at least two business days before the Tribunal hearing. 79 Therefore, under the statutory scheme of which ss 500(6H), 500(6J) and 500(6L) are part, there would have been no point in the Tribunal delaying its decision once it decided that it was going to refer to the text book to rebut a submission made by Ms Clarkin. It would have been prevented from receiving any document or submission from Mr Jagroop or his legal representatives on the topic by virtue of the above provisions in the Migration Act. See Daw v Minister for Immigration & Citizenship [2012] FCAFC 123 at [7]-[12] and Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378 esp at [26] and [31] and following per Gray J with whom R D Nicholson and Stone JJ agreed. It is to be observed that in Milne Gray J quoted extensively from his judgment in Goldie in support of his Honour's analysis. 80 The statutory scheme in which ss 500(6H), 500(6J) and 500(6L) appear, concerning the receipt of information in relation to a review of the type which Mr Jagroop initiated before the Tribunal, illustrates that a failure by the Tribunal to comply with the second limb of s 39(1) of the AAT Act will not necessarily lead to invalidity. Reading the general provision in s 39(1) of the AAT Act in the context of the specific provisions of s 500(6H) and (6J) of the Migration Act supports the view that a decision made in breach of s 39(1) of the AAT Act is not intended to be rendered invalid where provisions of the Migration Act dealing with cancellation of visas of those who do not pass the character test renders compliance with s 39(1) an impossibility: see, by analogy, Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [33]-[35] per Moore and Lander JJ. 81 For the foregoing reasons, the Court considers that no breach of procedural fairness arose from the manner in which the Tribunal conducted the hearing. Specifically, its refusal to re-open the matter and its failure to give Mr Jagroop notice of its reliance on the Nevotti article, the text book and the High Court cases did not involve it in a breach s 39(1) of the AAT Act; when considered in the context of s 500(6H), 500(6J) and 500(6L) of the Migration Act. This aspect of Mr Jagroop's challenge to the decision of the Tribunal is rejected.
The Direction 55 ground 82 This ground of judicial review is premised on the submission that Direction 55 was not in operation at the time of the hearing before the Tribunal or its decision. Counsel for Mr Jagroop contend that if that is the case, the matters referred to in Direction 55 are irrelevant to the exercise of the Tribunal's power. 83 Counsel for the Minister rejects the contention that Direction 55 ceased to operate after Minister Bowen was no longer the relevant Minister. 84 Section 499 of the Migration Act permits the Minister to give written directions about the performance of a function under the Migration Act. The person to whom the direction applies must comply with it. Direction 55 was made pursuant to s 499 by Minister Bowen. It concerned matters to be taken into account by decision-makers in exercising the power under s 501 of the Migration Act. 85 The previous direction which applied to s 501 powers was Direction No 41. On 1 September 2012, Direction 55 commenced and Direction 41 was revoked. On 4 February 2013, Minister Bowen ceased to be the relevant Minister. Mr Brendan O'Connor became the relevant Minister. The application by Mr Jagroop to the Tribunal post-dated the change of Minister. Minister O'Connor was the Minister at the time of the Tribunal hearing and determination of the matter the subject of the application. Minister O'Connor did not revoke Direction 55. The hearing before the Tribunal proceeded on the basis that Direction 55 continued to apply to the Tribunal. However, counsel for Mr Jagroop, in this Court, now contend to the contrary. 86 The Court rejects the submission that Direction 55 ceased to validly operate after the change of Minister on 4 February 2013. 87 Section 499(1) provides: The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. 88 Under s 20 of the Acts Interpretation Act 1901 (Cth), the reference to a particular office or a person holding a particular position is deemed to include all persons who at any time hold or occupy those offices or positions. The provision states: Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall be deemed to include all persons who at any time hold or occupy for the time being, or perform for the time being the duties of, the office or position. 89 Counsel for Mr Jagroop refer to s 19A(1)(c) of the Acts Interpretation Act 1901 (Cth) which provides that if an Act uses the expression "the Minister" without specifying which Minister, the words "the Minister" are taken to refer to "the Minister for the time being administering the provision". It follows, so the argument ran, that only the Minister administering the Migration Act may make directions under s 499(1). So much may be so, but that does not mean that the directions cease to apply on that Minister ceasing to administer the Migration Act. When s 19A(1)(c) is read with s 20, the logical consequence is that a direction continues to apply until revoked. When a direction is made under s 499 of the Migration Act, it is a direction having the force of one being made by the occupant of the office of the Minister administering the Act and not by virtue of the personal identity of the particular Minister. It follows that a direction made by a person holding the office of Minister will continue in force despite that person ceasing to hold that office. 90 In support of the contrary view, counsel for Mr Jagroop rely on the judgment of the Full Court in Attorney-General v Foster (1999) 84 FCR 582. Counsel submit that "for the time being" in s 19 of the Acts Interpretation Act 1901 (Cth) means "for the period under consideration". Again, so much may be so, but that does not mean that a direction made by a Minister pursuant to his or her authority to do so ceases to have effect when a new Minister succeeds to that office. Nothing in Foster dictates a contrary view. In Foster, the Full Court gave a broad interpretation to s 19. It held that it authorised the delegation of ministerial responsibility other than during a period of temporary absence of the relevant Minister. Nothing in Foster supports the proposition that Direction 55 lapsed once Minister Bowen ceased to be the relevant Minister administering the Migration Act. 91 Counsel for Mr Jagroop also seek to derive assistance from the tense used in s 20 of the Acts Interpretation Act 1901 (Cth) where reference is made to "persons who at any time hold or occupy for the time being, or perform for the time being the duties of the office". They contend that the use of the present tense precludes a reference to a former Minister. The problem with that construction is that when the former Minister made the direction he was occupying the relevant office. Minister Bowen was empowered to make Direction 55 at the time he made that direction. 92 Counsel for Mr Jagroop submit that the submission referred to in the preceding paragraph draws support from GG v Australian Crime Commission (2010) 182 FCR 513. On the contrary, insofar as it examines the purpose of s 20, GG supports the view that Direction 55, being an instrument made under the Migration Act, continues to apply despite the change of occupant of the ministerial office. At [12], Jessup and Tracey JJ said: Section 20 is concerned with ensuring that the operation of a statute is not defeated when the occupant of an office referred to as such (and without any conspicuous concern with the identity of that occupant under particular circumstances) happens not to be in actual occupation of, or performing the duties of, the office at a particular time. 93 Properly understood, s 20 ensures that directions made under s 499 of the Migration Act continue to have effect as being made by a person who occupied the office of Minister at the time of giving a direction. 94 Mr Jagroop's counsel also rely on ss 33 and 34AAA of the Acts Interpretation Act 1901 (Cth). Nothing in those provisions bears on the validity of Direction 55. 95 The Tribunal did not take into account an irrelevant consideration by complying with Direction 55. 96 On the assumption that the Tribunal was not bound, at law, to consider the content of Direction 55, then on what criteria should it have considered whether the Minister's delegate's decision to cancel Mr Jagroop's visa was the correct one? The decision to cancel a visa is a discretionary one. A visa-holder may fail to satisfy the character test but not have his or her visa cancelled. The purpose of the cancellation of a visa of someone who does not pass the character test is to protect the Australian community. The matters referred to in Direction 55 are directed to that issue. Absent an obligation to apply Direction 55, there is no reason why the matters contained in it should not be applied by the Tribunal as relevant matters to consider in deciding whether or not to affirm the decision of the delegate.
The general deterrence ground 97 The Tribunal took into account the principle of general deterrence in exercising its power under s 501 of the Migration Act. Counsel for Mr Jagroop submit that general deterrence was an irrelevant consideration as it was not an issue before the Tribunal. 98 The Tribunal referred to the question of general deterrence after considering the effect of a lengthy term of imprisonment on the question of special (or specific) deterrence to Mr Jagroop. After dealing with that topic, the Tribunal referred to general deterrence in the context of the text book at [76] of its reasons. The Tribunal said: Edney and Bagaric also examined the effectiveness of general deterrence. While they found that there was a general link between punishment and crime rate which shows an inverse relationship between the incidence of violent offending and the use of imprisonment, the length of imprisonment is irrelevant. Importantly, the authors said at paragraph 3.3.3.3: As noted above, it has been contended that the most important consideration regarding deterrence is not the penalty, but rather the perceived likelihood of apprehension. The Canadian Sentencing Commission noted that 'the old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research'. The connection between the certainty of punishment and crime rate has been reproduced by numerous studies. 99 The Tribunal did not place any weight on the question of general deterrence in its consideration of the risk of Mr Jagroop reoffending. In its conclusion on this topic, at [98], it said: In conclusion, I find that the evidence discloses that the nature of harm to individuals or the Australian community should the applicant repeat his violent offending is so serious that even a low risk of that occurring in these circumstances would be unacceptable to the Australian community. In any event, despite a number of persons qualified to make a psychological assessment of the applicant finding he had a low risk of recidivism, all of those reports omit the full nature and extent of the applicant's prior violence history and the very disturbing extent of his propensity to be untruthful. Their value must be diminished as a consequence of those omissions. I find that there remains a real risk that the applicant will re-offend and, taking into account the seriousness of his previous offending, this factor must weigh heavily against allowing the applicant to retain his visa. 100 If the Tribunal's decision is construed as having taken into account general deterrence, no jurisdictional error thereby arises. The list of matters referred to in Direction 55 does not include general deterrence. However, Direction 55 does not contain an exhaustive list of matters relevant to the exercise of the Tribunal's power under s 501. General deterrence is a well-established principle of sentencing. It is unsurprising that it may be discussed in passing as an adjunct to the issue of special or specific deterrence. 101 No jurisdictional error occurred as a result of the Tribunal referring to the issue of general deterrence.
Failure to take into account a relevant consideration - the further criminal conduct ground 102 Counsel for Mr Jagroop submit that the Tribunal failed to "take validly into account a relevant consideration" being the specific circumstances of Mr Jagroop's case on the risk of him committing further criminal conduct if he was permitted to remain in Australia. In this regard, counsel rely on Direction 55 where it compels the Tribunal to consider the specific circumstances of the individual's case. 103 Counsel submit that the Tribunal only "notionally" took into account specific deterrence, rehabilitation and parole in considering whether Mr Jagroop was at risk of committing further criminal conduct. They submit, in effect, that the Tribunal paid scant regard to these factors, preferring to rely on the Nevotti article, the text book and the High Court cases. In this context, it is also contended that the Tribunal failed to take into account ss 1, 4 and 5 of the Sentencing Act 1991 (Vic). 104 As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39: The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision [emphasis in the original]. 105 Counsel's reference to "validly take into account" and a concession that the listed matters (specific deterrence, rehabilitation and parole) were "notionally" taken into account suggests that Mr Jagroop takes issue with the way those matters were dealt with by the Tribunal, but does not assert that they were not dealt with at all. The Court accepts the submission of counsel for the Minister that Mr Jagroop's contentions on this point impermissibly seek to review the merits of factual findings made by the Tribunal or the weight it gave to the listed matters. 106 No jurisdictional error has been established on this ground. The Tribunal did consider the effect of specific deterrence, rehabilitation and parole in its reasons for decision. Specific deterrence was considered in the context of Mr Jagroop's serving of a lengthy prison sentence at [75] of the reasons and also at [80] in the context of Mr Jagroop's assessment under the Violence Intervention Program. Parole is considered at [90] to [97]. Rehabilitation is considered at [93] in the context of parole. 107 Further, there was no obligation on the Tribunal to refer to the Sentencing Act 1991 (Vic) at ss 1, 4 and 5. Those provisions add nothing to the considerations required to be taken into account under Direction 55. The submissions of counsel for Mr Jagroop on this issue are unmeritorious.
Conclusion 108 No ground of alleged jurisdictional error has been established in the application. The application must be dismissed with costs. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Jagroop
Minister for Immigration and Border Protection
[2013] AATA 237
(1999) 84 FCR 582
(1990) 169 CLR 525
(2010) 182 FCR 513
(2001) 111 FCR 378
(2008) 174 FCR 14
(1986) 162 CLR 24
(2003) 128 FCR 590
(1974) 131 CLR 623
Application dismissed. The applicant was ordered to pay the first respondent's costs.