Consideration
58 Having closely considered its reasons, it seems to me that the Tribunal understood and carried out its statutory task as required for the purpose of the exercise of the power under s 116.
59 It is true, as Mr Leota contends, that the Tribunal does not specify at [17] whether the relevant risk is to health, safety or good order. However, at [8] of its reasons it expressly considers the meaning of 'good order' and refers to Tien. Had the Tribunal's focus been on 'health' or 'safety', there would have been no need to address the meaning of 'good order'. The Tribunal does not separately address 'health' or 'safety'. In saying that, I note that there may be circumstances where there is an overlap and the nature of a risk may be such that it is a risk to health, safety and good order. In this case, however, it is apparent that the Tribunal identified that the risk it perceived was to good order.
60 It also considered the content of the relevant risk. It recites Goldberg J's explanation in Tien that it requires there to be an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. As the Tribunal immediately proceeds to recite Mr Leota's criminal offending, I consider it is implicit that the Tribunal considered that the element of the risk described by Goldberg J was satisfied by the disruption to the observance of the law in Australia as reflected in Mr Leota's status as a convicted dealer in dangerous drugs.
61 It is to be recalled that Goldberg J said, by way of example, that a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community.
62 Dealing in dangerous drugs constitutes serious criminal conduct. Dealing in methylamphetamine, including in commercial quantities, facilitates the spread of dangerous drugs into the community. Such drugs are included within the statutory definition of 'dangerous' drugs for a reason (Drugs Misuse Act 1986 (Qld): sch 1 and 2 of Drugs Misuse Regulation 1987 (Qld)). They impact not only on those who use them but on the broader community. So much is to my mind obvious and notorious. The Tribunal specifically brought to Mr Leota's attention his police records for the purpose of the hearing before it. Mr Leota acknowledged in his submissions 'the wider community issue of drugs and its impacts on its victims'. Whilst Mr Leota emphasises that all 38 drug-related offences of which he was convicted were dealt with at the same time by the Court and were part of what could be seen as comprising a 'first offence', such submission ignores Mr Leota's willingness to repeat his conduct on many separate occasions and on different dates.
63 Having regard to the nature and seriousness of Mr Leota's offending, it seems to me that the Tribunal was entitled to rely on his status as a dealer in dangerous drugs as the source of risk to the good order of the Australian community. I accept that 'risk' has an element of futurity to it such that reliance on past offending alone may not be sufficient, depending on the circumstances, to justify cancellation of a visa. However, in the case of a person with convictions for dealing in dangerous drugs on a large number of occasions and in commercial quantities, it was open for the Tribunal member to be satisfied that there was a risk that there may be further criminal conduct or non-observance of the law and so risk to the good order of the Australian community. To my mind the fact that the Tribunal had regard to such matters is implicit in its finding at [17] and its express reference to the applicant's presence in Australia 'as a dealer in dangerous drugs'.
64 The Tribunal's reasons expressed in its conclusion (at [34]) confirm that the Tribunal had such risk in mind. Having had regard to matters relevant to the prospect of re-offending on the part of Mr Leota (at [33]), the Tribunal was not persuaded that its concerns as to risk were overcome.
65 As I have said, it does not follow that reference by a decision-maker to a past conviction will of itself necessarily be sufficient to disclose the relevant risk. For example, a conviction for a minor crime is highly unlikely to be sufficient to explain the basis for a finding by the Minister of risk to good order as explained in Tien. Further, where the crime is more serious but of a type that is unlikely to be repeated by an offender, it may well be necessary for the Minister to set out in some detail the basis upon which it is contended that such conviction supports a finding of risk. Examples might include a criminal conviction following a car accident or a single episode of assault against an abusive family member with whom the offender no longer has any contact.
66 This approach is not inconsistent with PAM3, even accepting that it is not binding on a decision-maker. PAM3 adopts the language of Tien as to 'good order'. The parts of PAM3 that refer to criminal conduct refer to charges, not convictions. One can well understand why greater caution is required in cancelling a visa on the basis of charges that are not yet proved, as against convictions. If the Minister seeks to rely on charges it may be necessary to explain in some detail the basis upon which risk is perceived and to whom.
67 This is not such a case. Nor is it a case where a detailed express explanation or linking of the convictions to risk was required. The nature of the offending is serious, the risk to the community from such offending is obvious and it was open to the Tribunal to be concerned as to ongoing risk in light of the nature and extent of the criminal conduct on Mr Leota's part. The written reasons of the Tribunal reflect such a process of reasoning.
68 It is also true, as Mr Leota submits, that the Tribunal did not specify whether it was concerned with the risk to the Australian community as a whole or segments of it. I do not consider in the circumstances of the relevant risk in this case that it was obliged to do so. As explained in The Queen v Roe and Borbil, it is recognised that the supply of drugs such as methylamphetamine has an impact on the wider community and also users and families. In other cases, depending upon the relevant charge or conviction, it may well be necessary for a more precise identification of whether the risk is to the Australian community or a particular segment of it, but again, this is not such a case.
69 For completeness, I acknowledge that Newall is authority for the view that a single past conviction, and even in circumstances where the criminal conduct is highly unlikely to be repeated, may be sufficient to satisfy a decision-maker of relevant risk. The risk identified in that case - an adverse reaction by certain members of the Australian society to the offender's presence in Australia - is not a risk foreshadowed by the Tribunal in this case. However, one can understand why Branson J was careful in Newall to identify and explain the nature of the risk in that case, because it was by no means clear that risk might arise from the likely or possible conduct of the visa holder had he been permitted to come to Australia. The circumstances of the offending, and so the need for a precise explanation of the risk, are distinguishable from those with which the Tribunal was concerned in the present matter.
70 The Tribunal's reasons, having regard to the manner in which it first isolated and addressed the question of whether a ground for cancellation existed, disclose that it understood the nature of its statutory task. It identified that it was concerned with risk to good order, it considered the meaning of that expression and it had regard to the serious nature of Mr Leota's offending. It identified that it needed to be satisfied as to the question of risk as set out in s 116(1)(e)(i) before moving to consider its decisional discretion. Its reasons indicate that it identified the risk that Mr Leota posed and it formed the state of satisfaction that was required for the purpose of s 116.
71 Counsel for Mr Leota also submitted that the Tribunal's reasons indicate a lack of active and intellectual engagement with the question of risk, relying on Omar (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) in which the Full Court emphasised in the context of s 501 of the Migration Act the obligation on the Minister to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a request to revoke a mandatory visa cancellation decision.
72 It must be recalled that the statement of reasons of the Tribunal has to be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].
73 The determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line' will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49]; and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)].
74 I accept that the issue of the risk of re-offending was raised by Mr Leota's submissions before the Tribunal (see [21] above). Even assuming, as submitted by Mr Leota, that the principles as discussed in the context of representations for the purpose of s 501 apply for the purpose of s 116, it is apparent that the Tribunal had regard to evidence relevant to that question. Whilst the evidence was addressed expressly in that part of the reasons dealing with the exercise of discretion (at [33] of the Tribunal's reasons), as I have said, this is not a case where a detailed express explanation or linking of the convictions to risk was required for the purpose of the first step required under s 116(1)(e). It was open to the Tribunal to be concerned and satisfied as to ongoing risk in light of the nature and extent of the criminal conduct on Mr Leota's part. Having regard to the circumstances of the offending and the reasons as a whole, the fact that it is not expressly referred to as part of the finding at [17] of the Tribunal's reasons (or in a preceding paragraph) does not establish a lack of sufficient engagement with the issue. To find otherwise in those circumstances would construe the Tribunal's reasons too minutely, contrary to the approach endorsed in Wu Shan Liang.
75 In my view jurisdictional error is not established and ground 1 is therefore not upheld.