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

The present application for review 9 The applicant now brings an application in this Court to review the Tribunal's decision on the rehearing. The application is based upon a single ground of alleged jurisdictional error. In written submissions by counsel for the applicant, the ground was expressed in the following terms: The applicant alleges that the Tribunal erred by failing to complete its statutory task due to misconstruing (alternatively misapplying) paragraph 11.1.2(3) of Direction 79. 10 The applicant relies upon the analysis by Mortimer J in PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 for the proposition that non-compliance with a direction made under s 499 may constitute jurisdictional error. Counsel for the Minister offered no submission disputing that proposition. Rather, the submissions advanced for the Minister were to the effect that there had been no misconstruction or misapplication of Direction 79 by the Tribunal of the kind alleged by the applicant.

The nature of the alleged failure to comply with Direction 79 11 Part B of Direction 79 specifies certain primary considerations that a decision-maker 'must take into account … where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted … a visa' (informed by certain principles specified in the direction): cl 7(1). Part B begins by stating: (1) In deciding whether to refuse a non-citizen's visa, the following are primary considerations: a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian Community. 12 As to the primary consideration concerning protection of the Australian community, cl 11.1(1) states: When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to: a) The nature and seriousness of the non-citizen's conduct to date; and b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 13 Then, as to risk to the Australian community should the non-citizen commit further offences, cl 11.1.2 states: (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. (2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. (3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and iii. the duration of the intended stay in Australia. 14 The contentions advanced for the applicant in support of the review ground were to the effect that Direction 79 required the Tribunal to (a) identify the harm that may occur if the applicant was to re-offend; (b) assess the likelihood that the applicant may re-offend and cause that harm; and (c) based on those conclusions, assess the resulting risk to the community. 15 For the applicant it was submitted that what the Tribunal did was to identify that there was a moderate likelihood that the applicant would re-offend by drink-driving and then conclude that such re-offending could have tragic consequences. This led to the Tribunal concluding that the risk to the Australian community should the applicant re-offend weighed very strongly against the grant of the visa. 16 It was contended that to reason in that manner was a 'misalignment'. This was said to arise because the Tribunal reasoned that the likely re-offending was drink-driving but then attributed to that type of offending a consequence that would only arise if the applicant engaged in more serious offending of the kind the subject of the First Driving Offences (namely dangerous driving causing bodily harm and dangerous driving causing death). It was submitted that in order for harm of that kind to be considered as the relevant 'nature of the harm' the Tribunal would have to find that there was a likelihood of more serious offending, a finding that the Tribunal did not make. Therefore, so it was said, Direction 79 was not given effect because the harm to individuals that was brought to account was not harm that would flow should the applicant engage in drink-driving. Rather, it was said to be harm that would only flow if there was some other aspect to the offending such as driving in a dangerous manner being a type of re-offending that was not found by the Tribunal to be likely. 17 In effect the alleged error by the Tribunal was said to involve finding that it was drink-driving (and not the more serious offending of the kind the subject of the First Driving Offences) that was the re-offending that was moderately likely followed by the attribution to that offending of a type of harm that was too serious. In order for there to be tragic consequences from offending it was necessary to be some aspect of the driving that would mean there was a more serious driving offence. Yet, the Tribunal made no finding that the applicant was likely to re-offend by committing such more serious driving offences.

The position of the Minister 18 The submissions advanced for the Minister were to the effect that on a fair reading of the Tribunal's reasons it found that it was moderately likely that the applicant would re-offend by committing more serious driving offences of the kind the subject of the First Driving Offences. Alternatively, if the Tribunal only found that the lesser offence of drink-driving was moderately likely then there was no error in concluding, as the Tribunal did, that 'tragic consequences' was the nature of the harm that could be caused from such re-offending.

The reasoning pathway of the Tribunal 19 The relevant reasoning of the Tribunal began with a broad statement of the Tribunal's task in complying with the provisions of Direction 79 concerning the nature of the harm that might flow from re-offending. It was expressed as follows (para 71): Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 11.1.2(3)(a) of Direction No 79). 20 The Tribunal then stated a summary of the serious harms that can result from driving offences expressed in the following terms (para 72): In summary, should the Applicant commit further driving offences, members of the public (including other road users, passengers and pedestrians) could suffer injury, death, and possibly psychological trauma. The family members of persons killed or injured in traffic accidents may also suffer adverse emotional and financial consequences following the injury or death of a family member or loved one. 21 This summary was expressed by reference to views expressed by other Tribunal members which had been quoted earlier in the reasons of the Tribunal. The statements that were quoted included the following: … driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. … There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious. … The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels. … The Applicant's record of repeat driving offences tends to indicate an [in]ability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. 22 No issue was raised with respect to this mode of reasoning which was expressed by reference to views expressed by other Tribunal members in other cases. It is an approach that is not without its concerns when it comes to the making of administrative decisions that must be made having regard to the particular circumstances of each case. There is a risk that a general view might be taken concerning the manner in which the discretion conferred by s 501(1) is to be exercised in all cases where there has been a history of driving offences. The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns 'other serious conduct'. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case. 23 Having made that observation it is to be noted that the Tribunal's reasons in its summary are expressed by reference to the applicant. Nevertheless, they manifest a view formed by the Tribunal as to the harm that may flow from driving offences generally 'including driving under the influence of alcohol and without a valid driver's licence'. 24 The Tribunal then stated that it was required to consider the likelihood of the applicant re-offending (para 73). 25 Thereafter, the Tribunal explained (in a manner that is not criticised) the manner in which it approached the assessment of the likelihood of the applicant re-offending and evaluated that risk by reference to the material before the Tribunal (paras 74-93). Having done so, the Tribunal then concluded (at para 94): Overall, after considering the relevant submissions and evidence, the Tribunal finds that there is, at the very least, a moderate likelihood that the Applicant may consume alcohol and drive again. If he does so, it could have tragic consequences. Taking into account the serious nature of the harm that could be caused to the Australian community if the Applicant were to reoffend in a similar manner, and the factors discussed above, the Tribunal finds that this part of the first primary consideration weighs very strongly against the grant of the Permanent Partner Visa. 26 It is the terms in which the Tribunal expressed its conclusion that was the focus of the submissions for the applicant. 27 However, it is to be noted that in the preceding analysis, the Tribunal stated (at para 78): The Applicant's remorse is, however, somewhat called into question by his re-offending. If the Applicant truly appreciated the impact of driving under the influence of alcohol and whilst unlicensed after committing the First Driving Offences, he would not have done so a second time when he committed the Second Driving Offences. 28 I note that at this point it appears that the Tribunal is treating the matters the subject of the Second Driving Offences as the re-offending. Similarly, later in its reasons the Tribunal deals with an exchange when the applicant was examined about the possible consequences of his driving the subject of the Second Driving Offences being the same as the outcome of the incident the subject of the First Driving Offences. The Tribunal then reasoned (at para 85) that 'the Applicant did not fully appreciate the seriousness of committing similar offences and the potential consequences of repeating his conduct, despite the tragic consequences of the First Driving Offences'. The offences that were similar were drink-driving and driving without a licence. It appears that the reasoning is attributing the risk of tragic consequences to the Second Driving Offences. 29 Also, the Tribunal (at para 93) listed matters that outweighed 'protective factors' when it came to the applicant's risk of re-offending. Once of those factors was said to be the applicant's 'lack of consequential thinking, as demonstrated by his committing the Second Driving Offences despite the tragic consequences of the First Driving Offences'. 30 The Tribunal then summarised its findings concerning the nature and seriousness of the applicant's conduct and the risk to the community should the applicant re-offend in the following terms (at para 95): In summary, the Tribunal has found that the 'nature and seriousness of the non-citizen's criminal offending or other serious conduct' part of this primary consideration (that is, paragraph 11.1.1(1) of Direction No 79) weighs very strongly against the grant of the Permanent Partner Visa, and the 'risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct' (that is, paragraph 11.1.2 of Direction No 79) also weighs very strongly against the grant of the Permanent Partner Visa.

Issues for determination 31 Given the submissions of the parties, the following issues arise for determination: (1) Did the Tribunal find that there was a moderate likelihood of the applicant offending in the manner of the Second Driving Offences (thereby not making a finding as to any likelihood of the applicant offending in the nature of the dangerous driving offences that formed part of the First Driving Offences)? (2) If yes to (1), did the Tribunal find that offending in the manner of the Second Driving Offences could have tragic consequences? (3) If yes to (2), was there a misalignment such that the conclusion as to tragic consequences could not be said to be harm that was of such a nature that it was harm to which the Tribunal could have had regard in giving effect to Direction 79?

Issue (1) 32 The reasoning of the Tribunal did not refer at any point to the possibility of the applicant re-offending by engaging in dangerous driving. The reasoning pathway of the Tribunal was to point to the fact of the Second Driving Offences together with other matters relating to the applicant when considering the risk of re-offending. There is no reasoning to support a finding that there was a risk that the applicant would re-offend by dangerous driving or some other driving offence other than driving under the influence of alcohol or without a licence. 33 The Tribunal had a statutory obligation to provide reasons to that effect if it considered such a risk to be relevant to the conclusions that it reached on the application. 34 For those reasons, I accept the submission for the applicant to the effect that the Tribunal found that there was a moderate likelihood of the applicant offending in the manner of the Second Driving Offences.

Issue (2) 35 The use of the terminology 'tragic consequences' reflects language used at a number of earlier points in the Tribunal's reasons. In particular, it reflects the following language used at para 56 after describing the circumstances of the Second Driving Offences: However, fortunately, this offending did not have a tragic outcome as did the First Driving Offences. Overall, the Tribunal finds the Applicant's driving offences to be serious, particularly due to their actual, and potential, tragic consequences. 36 At this point in its reasons, the Tribunal was describing the nature of the applicant's past offending. It can be seen that both the First and Second Driving Offences were described collectively as having 'actual and potential tragic consequences'. This supports the conclusion that the Tribunal viewed the Second Driving Offences as having the potential to have the same outcome as the First Driving Offences despite the fact that no dangerous driving offence formed part of the Second Driving Offences. 37 A similar view can be found at para 64 where the Tribunal sated: The Applicant's offences have not increased in seriousness, however as noted above, it is fortunate that the Second Driving Offences did not have tragic consequences. 38 Then, in the course of dealing with the consequences of likely re-offending, the description 'tragic consequences' was applied to the First Driving Offences (para 85). 39 Finally, as has been noted, at para 93(c) the same words were used to refer to the consequences of the First Driving Offences, but in a manner that connected to the Second Driving Offences in describing one of the factors that contributed to the risk of re-offending in the following terms: [the applicant's] lack of consequential thinking, as demonstrated by his committing the Second Driving Offences despite the tragic consequences of the First Driving Offences 40 However, in context, at para 95, for reasons which have been given, the Tribunal was expressing its view as to consequences which could flow from re-offending of the kind manifested by the Second Driving Offences. Expressing its conclusion in those terms was not to disregard other consequences. Rather, it was to identify likely consequences of re-offending that were considered to be of significance for the Tribunal in its overall consideration of the application. 41 Therefore, the Tribunal did find that offending in the manner of the Second Driving Offences could have tragic consequences.

Issue (3) 42 It does not follow from the fact that particular consequences may be associated with more serious offending that they are not also consequences to which the community is exposed by lesser offending. There are many instances where the same act results in more serious criminal liability because of the consequences. A person who swings a punch and misses the mark will commit a lesser offence than if the same punch was to hit the face of a person, break their jaw and send them unconscious to the ground fracturing their skull. The risk of serious harm is present in both factual scenarios. If the risk manifests then the same act will amount to a more serious offence. 43 Further there are many instances, and drink-driving is an example, where the risk of serious consequences is the reason why the lesser offence exists. In effect, the purpose of the lesser offence is to discourage conduct which, in some but not all instances, will have serious consequences. These matters were recently addressed by McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266. In that case, a submission was advanced to the effect that there was error in applying Direction 79 to conclude that there was a risk of harm from future re-offending when there had not been serious harm from the applicant's past offending (which the Tribunal found he was at risk of repeating). 44 His Honour was there dealing with a different type of offending but reasoned by reference to drink-driving as an example, observing at [48]: It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. Thus, possession and supply of child pornography is sanctioned because of the risk to children generally, who are inevitably abused to create such material and may be at greater risk of predatory behaviour by those who are encouraged by such material. In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users. 45 Drink-driving affects reaction times and driving skill. A drunk-driver, confronted with a particular situation, will not be able to respond as well as an unaffected driver. As has been observed, the Tribunal found (by reference to other Tribunal decisions) that driving offences could result in 'injury, death, and possibly psychological trauma' (para 72). These findings were not confined to serious driving offences. They included drink-driving. Unlike the applicant in RQRP the applicant in the present case did not seek to impugn those findings on the basis that they were baseless speculation. Therefore, as a matter of undisputed fact, the Tribunal found that there could be serious consequences from driving offences that included drink-driving. 46 Further, the question for the Tribunal in applying Direction 79 was not whether it would be inevitable that there would be serious consequences if there was re-offending (by drink-driving) but rather whether there was a risk of such consequences. On the unchallenged findings of the Tribunal there was such a risk associated with drink-driving. There was no error by way of misalignment in finding that such a risk was a consequence of the likely re-offending that the Tribunal found. Put another way, it was not necessary for the Tribunal to find that more serious offending was likely before concluding that there was a risk of tragic consequences. 47 It follows that no error in the form of misapplication or misalignment of the kind alleged has been demonstrated.

Conclusion 48 For the reasons that have been given the application for review must be dismissed. It was accepted that costs should follow the event. Therefore, there will be orders dismissing the application with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.