Ground 4 - Failure to consider relevant material
30 Ground 4 alleges that the Tribunal failed to consider material relevant to its decision not to exercise discretion to revoke the mandatory cancellation. The relevant material is a Sentencing Schedule dated 15 May 2019, produced under summons by the Magistrates Court of Queensland.
31 Failure to consider relevant material in a way that affects the exercise of a power is an established ground of jurisdictional error. However, not every failure to consider relevant material amounts to jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97].
32 In SZRKT, Robertson J said at [111]-[112]:
111 …The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112 As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims...
(See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]-[56].)
33 In GBV18 v Minister for Home Affairs [2020] FCAFC 17, the Full Court at [31] summarised a number of principles relevant to an allegation of jurisdictional error on the ground that the Tribunal failed to consider significant material or representations. These principles include that, "The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT". Further, "The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed". These principles must also apply to the evidence given and submissions made in a hearing before the Tribunal of an application to revoke a cancellation decision.
34 The Full Court at [32] summarised a number of principles taken from Minister for Home Affairs v Omar (2019) 272 FCR 589, concerning the obligation of a decision-maker to "consider" a matter, as follows:
(a) Even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).
(b) Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.
(c) The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister's statements of reasons in the two cases there stated that he had "given full consideration to all of the information before me" and that the reasons contained numerous statements by the Minister that he had "considered", "noted", "accepted", "recognised" or "had regard to" various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.
(d) The decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3]…
(e) Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia's non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker "may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law".
(f) The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.
(g) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.
(h) Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker's ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.
35 In EVK18 v Minister for Home Affairs [2020] FCAFC 49, the Full Court held as follows:
14 In GBV18 the Full Court referred to the need for a "representation" to "clearly express" a claim: [2020] FCAFC 17 at [32(d)]. In seeking to identify those "representations" which required the consideration of the decision-maker, the Court there also used a number of like expressions such as a "clearly articulated and substantial or significant representation" and "a substantial or significant and clearly articulated claim" (GBV18 [2020] FCAFC 17 at [32(e) and (f)]). The same Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 subsequently returned to the importance of identifying those claims which may be found within a "representation" made pursuant to s 501CA(3) which attracted the need for consideration as follows:
[56] Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review.
The balance that is sought to be struck is to recognise that a "representation" which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular "statement" that may be found within a representation as exposing legal error (cf. BHA17 [2018] FCAFC at [139], (2018) 260 FCR at 562), whilst at the same time recognising that a "representation" may not be drafted with the skill of an experienced legal practitioner.
36 In order to establish jurisdictional error, it must also be shown that the failure to consider material relevant to its decision was material. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality held at [29] that where a statute confers decision-making authority, "The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance". Their Honours stated at [30]:
…the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made…
37 This was confirmed by the plurality in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, which stated at [45], "A breach is material to a decision only if compliance could realistically have resulted in a different decision".
38 These authorities confirm that to establish jurisdictional error by reason of a failure to consider relevant material, it is necessary to demonstrate that:
(1) The Tribunal did not consider the material.
(2) The material was relevant and sufficiently important to make the error sufficiently serious to be considered a jurisdictional error. The relevant factors include the cogency of the material and its place in the assessment of the claims made.
(3) If the material had not been overlooked, it could realistically have resulted in a different decision.
39 The applicant bears the onus of establishing that the relevant material was not considered: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 at [38]; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]. The Court has recognised that "necessary caution" should be exercised when an applicant asserts that proper consideration was not given to a particular matter, given that such a contention potentially conceals an impermissible challenge to the merits of the decision: King v Minister for Immigration and Border Protection (2014) 142 ALD 305; [2014] FCA 766 at [18].
40 The applicant alleges that the material not taken into account was the Sentencing Schedule. That Schedule contains a description of the facts relating to an offence of obstructing a police officer committed on 29 December 2018. The relevant paragraph is reproduced below:
Upon arrival at Mackay Watch-house and whilst still under arrest, the defendant became aggressive towards Police. The defendant refused to move from the vehicle bay into the holding cell. The defendant adopted a fighting stance, and repeatedly lunched towards Police with clenched fists and raised hands. The defendant repeatedly made threats to kill and injure Police whilst performing these actions.
(Striking-through done by hand in original).
41 The Sentencing Schedule was evidently prepared by the prosecution. As the Sentencing Schedule was produced to the Tribunal by the Magistrates Court, it must be inferred that it was handed up to the Magistrate by the prosecutor at the sentencing hearing. It should be inferred that the striking-through was done by the prosecutor, or by the Magistrate at the request of the prosecutor. It should also be inferred that the striking-through was intended to indicate that the facts alleged in the deleted sentence were no longer relied upon by the prosecution.
42 The applicant submits that there is no reference in the Tribunal's reasons to the Sentencing Schedule, which leads to an inference that the Tribunal failed to consider the Sentencing Schedule.
43 It may be recalled that the Tribunal found that:
However, [the applicant] denied adopting a fighting stance, putting his fists up or making threats. The Applicant was angry and intoxicated at this time. I prefer the contemporaneous police evidence about the conduct he engaged in to his evidence, and I accordingly find that he was physically threatening and made threats to harm and kill police.
44 The "contemporaneous police evidence" preferred to by the Tribunal was a "Court Brief" produced to the Tribunal under summons by the Queensland Police Service and tendered by the Minister. The Court Brief states that:
Upon arrival at Mackay Watch-house and whilst still under arrest, the defendant became aggressive towards Police. The defendant refused to move from the vehicle bay into the holding cell. The defendant adopted a fighting stance, and repeatedly lunged towards Police with clenched fists and raised hands. The defendant repeatedly made threats to kill and injure Police whilst performing these actions.
45 This was the same language as used in the Sentencing Schedule, except that the last sentence was struck through in the Sentencing Schedule. The discrepancy seems explicable by the prosecution having made a late decision that the last sentence would not be relied upon and then the sentence being struck-through in pen by the prosecutor, or by the Magistrate at the request of the prosecutor.
46 The Tribunal's finding that, "I prefer the contemporaneous police evidence about the conduct he engaged in", must have been made by reference to the Court Brief. The fact that the Tribunal made no reference to the deletion of the words, "The defendant repeatedly made threats to kill and injure Police whilst performing these actions" strongly suggests that the Tribunal was not aware of the deletion from the Sentencing Schedule.
47 However, the Minister submits that there are two relevant principles that govern drawing inferences from a decision-maker's statement of reasons, articulated by the High Court in BVD17 at [38]: that, "a statement of reasons must be read fairly and not in an unduly critical manner"; and that it "must be read in light of the content of the statutory obligation pursuant to which it was prepared".
48 The Minister submits that the Tribunal had no statutory obligation to refer to the Sentencing Schedule in its reasons, and that a lack of direct reference to specific evidence or material is not indicative of the Tribunal not considering a particular item of evidence. The Minister emphasises that the Tribunal is not required to set out the matters it considered when it made its decision. Under s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal is required to give reasons for its decision either orally or in writing. Where the reasons are given in writing, s 43(2B) requires that, "those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based".
49 There is no obligation on a decision-maker to refer to evidence that might be seen to be adverse or contrary to the findings of fact made by a decision-maker, or to give reasons why a particular piece of evidence was rejected or attributed less weight than another item of evidence: see eg NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]; Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387 at [9]; AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 at [51]-[60]; BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354 at [88]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45].
50 The Minister observes that the Tribunal's reasons make reference on numerous occasions to the tender bundle before it, including specifically the part of the tender bundle which included the Sentencing Schedule. It is submitted by the Minister that this, "makes it difficult for any inference to be drawn that the sentencing schedule was overlooked", particularly because it would have to be inferred that the Tribunal read only a few documents in the relevant part of the tender bundle, but not the entirety of the Sentencing Schedule. The Minister submits that this weighs against any inference that the Sentencing Schedule was not considered, relying on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [73].
51 While I accept that the Tribunal had regard to the Sentencing Schedule generally, I find that it did not consider, in the sense of engaging in an active intellectual process with, the deletion of the words, "The defendant repeatedly made threats to kill and injure Police whilst performing these actions". Consideration of the deletion of these words could have allowed the Tribunal to draw an inference that the prosecution had not relied upon them. That would have been, in part, consistent with the applicant's denial of, "adopting a fighting stance, putting his fists up or making threats". The Tribunal clearly took into account the other evidence touching upon that issue, namely the applicant's oral evidence and the extract from the Court Brief. If the Tribunal had not overlooked the deletion, its relevance is likely to have been expressly discussed in the Tribunal's reasons.
52 It is not to the point for the Minister to say that the Tribunal was not obliged to specifically refer to the deletion. An examination of the reasons as a whole shows that the Tribunal was concerned to made findings and to explain the evidence and reasoning for its findings. It is simply implausible, when regard is had to the otherwise careful content and structure of the reasons, that the Tribunal would have referred only to the passage from the Court Brief but not the deletion of the passage in the Sentencing Schedule if it had been aware of the deletion. It is probable that the Tribunal was unaware of the deletion.
53 However, in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56], the Full Court warned against, "elevat[ing] a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution". In the context of an argument that the Tribunal overlooked relevant material, it is relevant to consider whether the deletion in the Sentencing Schedule was drawn to the attention of the Tribunal, or, at least, arose clearly from the material before the Tribunal. The place of the material in the context of the presentation of the claim is relevant to assessment of whether an error was made and its seriousness.
54 The Sentencing Schedule was tendered by the Minister as part of a bundle of material at the outset of the hearing before the Tribunal. The issue of the applicant's denial of the making of verbal threats did not arise in the applicant's opening or his evidence-in-chief, but did arise in cross-examination when the Minister's solicitor asked the applicant about some of the offences, including the offence of obstruct police. Following the cross-examination, the applicant's solicitor gave a detailed oral address. In the course of the address, the Tribunal made reference to the allegation that the applicant had made threats to the police officers. The applicant submitted that the offence did not involve any physical assault and that the offence should be regarded as less serious because of this. The applicant's solicitor did not submit that the applicant had not verbally threatened police and did not refer to the struck-through sentence in the Sentencing Schedule. An inference is available that it was either overlooked by the solicitor, or regarded by the solicitor as being of insufficient significance to draw to the Tribunal's attention.
55 In circumstances where the striking-through of the sentence in the Sentencing Schedule was not drawn to the attention of the Tribunal, nor relied upon by the applicant's solicitor, I do not accept that the Tribunal committed jurisdictional error by failing to consider the deletion.
56 Although this conclusion is enough to dispose of Ground 4, I will consider the remaining issues arising under this ground in case I am wrong.
57 The applicant submits that the deletion from the Sentencing Schedule was of central importance to the Tribunal's factual enquiry relating to the conduct underlying the applicant's conviction for the offence of obstruct police officer, and that the error was therefore sufficiently serious to amount to jurisdictional error.
58 In the Tribunal's reasons, factors (c) and (e) of para 13.1.1 of Direction 79 were considered to weigh heavily in favour of non-revocation. The Tribunal's consideration of factors (c) and (e) involved findings that threatening to kill or harm police officers is "the type of conduct that strikes at the heart of the criminal justice system" and is "undeniably very serious". The applicant submits that the Tribunal's finding that the applicant, "made threats to harm and kill police" was central to the Tribunal's ultimate decision not to exercise the discretion conferred by s 501CA(4) of the Act, and that the evidence of the deletion was therefore pivotal to the decision. It is submitted that, as a result, the Tribunal's failure to consider the deletion from the Sentencing Schedule amounts to jurisdictional error.
59 The Minister submits that factors (c) and (e) were only two of six factors in para 13.1.1 of Direction 79 that went to the issue of the seriousness of offending, and that even had the Tribunal explicitly considered the struck-out material, it would not have made a difference to the outcome.
60 The disputed issue was that the applicant, "denied adopting a fighting stance, putting his fists up or making threats". The striking-through deleted the allegation that the applicant, "repeatedly made threats to kill and injure Police". This was a reference to verbal threats. The deletion did not affect the allegation that the applicant, "adopted a fighting stance, he repeatedly lunged towards police with clenched fists and raised hands". Accordingly, the applicant must have been sentenced by the Magistrate on the basis that he made physical, but not verbal, threats to the police.
61 At para [50] of its reasons, the Tribunal states that factor (c), namely that the applicant threatened to harm or kill a police officer, "weighs heavily in favour of non-revocation". At [48], the Tribunal notes that the applicant "verbally and physically threatened [police officers] which included threats to kill". Accordingly, the Tribunal's conclusion that factor (c) weighs heavily in favour of non-revocation included not just a finding that the applicant made verbal threats of harm, but also a finding that the applicant made physical threats. This latter finding would not have been influenced by the struck-out material in the Sentencing Schedule, which concerned only verbal threats. While factor (c) was considered to weigh heavily in favour of non-revocation, I consider that the struck-out material is unlikely to have made any material difference to the weight given to factor (c), and to the ultimate decision.
62 Similarly, in the context of factor (e) of paragraph 13.1.1(1), the Tribunal found that the offence, "involved him adopting a fighting stance, lunging toward officers and making threats to kill. Such conduct is undeniably very serious". Again, the Tribunal took into account, not merely the verbal threats, but also the physical threats. I consider that the struck-out material is unlikely to have made any material difference to the weight given to factor (e). It is unlikely to have made any difference to the ultimate decision, even if considered in combination with factor (c).
63 Further, I accept the Minister's submission that the making of verbal threats to police in the course of one offence was only one of many factors that the Tribunal found to weigh against revocation of the cancellation decision. In particular, the applicant's criminal history was extensive and the issue in dispute concerned only part of one offence out of many. I do not consider that the question of whether the applicant had made verbal, as well as physical, threats to police in respect of one offence was of sufficient centrality to the Tribunal's decision to make the error in overlooking the deletion of sufficient seriousness to amount to jurisdictional error.
64 It would also need to be demonstrated that the failure of the Tribunal to consider the deletion from the Sentencing Schedule was material in the sense that if it had not been overlooked then it could realistically have resulted in a different decision: SZMTA at [45]. The question of the materiality of a failure to consider relevant material is an ordinary question of fact in respect of which the applicant bears the onus of proof: SZMTA at [46]. For the reasons I have given when considering the seriousness of the error, I do not consider that the Tribunal's failure to consider the Sentencing Schedule was material to the outcome of the decision.
65 Therefore, the fourth ground must be dismissed.