LPGJ v Minister for Home Affairs [2019] FCA 1893 | Case summary

LPGJ v Minister for Home Affairs [2019] FCA 1893 | Case summary | Zoe

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Background 4 The applicant experienced a very difficult childhood. He never met his biological father and was abandoned by his mother at the age of six. The volatility of the applicant's early childhood was captured in the following remarks of sentencing judges to have considered the applicant's personal circumstances: … "You are a victim of parental abandonment, indifference and wilful neglect; a victim of monumental institutional barbarity and a victim of a convicted paedophile's callous abuse. That such a victim as you has been damaged and fractured is scarcely surprising. That such a victim's personality and identity have been dissolved into fragments is an inevitable consequence of the continuing attack on both, the sequential and cumulative horror visited upon both. Everything has conspired against you..... .....you have had no proper family life, received no normal parental affection, discipline, security or stability. You were a discard in a moral vacuum. Given no understanding, you could not possibly find your own understanding; given no guidelines for judgment, you could not possibly learn judgment. Propelled from infancy before your time, denied childhood and adolescence, you have had no enjoyment of those passages, nor acquired the skills that those passages throw up as maturity occurs." … You were born in the United Kingdom. Your parents separated when you were aged about three and you subsequently were abandoned by your mother when you were six. Your mother moved to Australia and you were made a ward of the state and remained so until age 13. Throughout that period you were diagnosed with ADHD and were repeatedly verbally intimidated, physically and sexually abused and in and out of boarding schools and various foster homes. At age 13 your mother wanted to resume custody of you and you gained assisted entry into Australia in 1993. You could not cope with the family environment and moved away from your mother after approximately nine months. Your schooling was fragmented by the disruption of your living circumstances. … 5 A medical report before the Tribunal further described the applicant's upbringing as follows: Being a product of an extramarital affair engaged in by his mother he has never met his biological father, and was raised by his other and stepfather until the couple separated when he was six years of age. [The applicant] recalled that he was often left in the care of his alcoholic stepfather while his mother worked, and at six years of age was placed in a Children's Home whilst his mother and sisters "went on holidays" to Australia. Discovering later that they had actually migrated to Australia he spent the next seven years in institutions and foster homes, recalling experiences of child sexual abuse both in the institution and by a female carer in a Foster home. 6 The applicant first entered Australia in May 1994, when he was 14 years old. Most regrettably, the applicant continued to experience sexual abuse in Australia, as was summarised by the Tribunal at [37] of its reasons: The sexual abuse that he suffered occurred both in the United Kingdom and after his arrival in Australia. In particular during his time in Australia he was in some form of foster care and a hostel in Box Hill. It was during his time there that he was sexually abused. In the course of enduring such sexual abuse he was also introduced to drugs by his abusers. He stated that ultimately he gave evidence against his abusers at a criminal trial and received modest compensation. This evidence regarding the sexual abuse suffered by the applicant was unchallenged in the Tribunal, as noted in the Tribunal's reasons at [39]. 7 As recorded by the Tribunal, after these events the applicant experienced a downward spiral of sexual abuse, drug use and crime. Since 1996, the applicant has been convicted of a significant number of criminal offences. This includes the following eight occasions upon which the applicant received custodial sentences of 12 months or more: (1) in January 2001, a sentence of 15 months' imprisonment for armed robbery; (2) in July 2004, a sentence of 24 months' imprisonment for armed robbery; (3) in May 2007, a sentence of 12 months' imprisonment for theft of a motor vehicle; (4) in January 2008, an aggregate sentence of 12 months' imprisonment for number of offences, including attempting to steal a motor vehicle; (5) in January 2009, an aggregate sentence of 15 months' imprisonment for a number of offences, including burglary and theft of a motor vehicle; (6) in July 2011, a sentence of 12 months' imprisonment for robbery; (7) in October 2011, an aggregate sentence of 12 months' imprisonment for number of offences, including burglary and theft; and (8) in August 2012, a sentence of 30 months' imprisonment for attempted armed robbery. 8 In July 2016, the applicant was convicted of further offences leading to an aggregate sentence of nine months' imprisonment. 9 On 4 January 2017, a delegate of the Minister of Immigration and Border Protection decided to cancel the applicant's visa under s 501(3A) of the Act. For reference, that provision relevantly provides the following: Refusal or cancellation of visa on character grounds … (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) …; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State of a Territory. 10 The applicant had a "substantial criminal record" for the purposes of s 501(3A)(a)(i) because he had been sentenced to terms of imprisonment of 12 months or more: s 501(7) of the Act. 11 The applicant was notified of the delegate's decision and invited to make representations about the potential revocation of that decision. The applicant subsequently completed and provided various documentation in response to that invitation. 12 On 5 February 2018, a delegate of the Minister of Home Affairs decided under s 501C A(4) of the Act not to revoke the cancellation of the applicant's visa. For reference, that provision provides the following: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 13 On 7 February 2018, the applicant applied to the Tribunal for review of the merits of the delegate's decision. The applicant attended a hearing before the Tribunal on 5 April 2018, at which he was represented by counsel.

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Tribunal's decision 14 On 27 April 2018, the Tribunal affirmed the delegate's decision not to revoke the cancellation of the applicant's visa: LPGJ and Minister for Home Affairs (Migration) [2018] AATA 1075 (AAT Reasons). 15 The Tribunal recognised that, pursuant to s 499(2A) of the Act, it was required to comply with ministerial directions given by the Minister regarding the exercise of its functions in making a decision under s 501CA(4): ibid at [10]. In this case, the direction relevant to the Tribunal's decision was Direction No. 65, as defined above at [2]. 16 The AAT Reasons were primarily structured by reference to the considerations prescribed by Direction No. 65. In this regard, the Tribunal held, in summary, that: (a) the protection of the Australian community significantly weighed in favour of not revoking the cancellation of the applicant's visa: ibid at [59]; (b) given the applicant only had one adult daughter, the best interests of minor children neither weighed in favour of or against revocation: ibid at [61]; (c) the expectations of the Australian community were that the cancellation of the applicant's visa would not be revoked: ibid at [70]; (d) international non-refoulement obligations, impact on Australian business interests and impact on victims did not arise for consideration: ibid at [72]; (e) the strength, nature and duration of the applicant's ties to Australia weighed "to some reasonable degree" in favour of revocation: ibid at [82]; and (f) the applicant would not face any significant impediments if returned to the United Kingdom: ibid at [89]. 17 Having assessed each of these considerations, the Tribunal expressed its conclusion as follows: CONSIDERATION AND CONCLUSIONS 97. Given the history of child abuse suffered by the Applicant, as recounted in the material in evidence before the Tribunal, there is much force in his contention that the Australian community owes him a debt because it failed him. Concomitant with this contention is the suggestion that this consideration should prevail over the other considerations the Tribunal must take into account. 98. However, the primary considerations that the Tribunal must take into account must be weighed up against the Applicant's contentions concerning the child abuse that he suffered. The primary considerations that are relevant in this case that have been analysed in these reasons are the protection of the Australian community and the expectations of the Australian community. 99. Regrettably, the Applicant has committed serious criminal offences. These criminal offences were committed over a long time span and many whilst he was an adult. Some were committed on victims who were exposed. He continued to offend notwithstanding that he was given four warnings of the migration consequences if such behaviour continued. He was given many opportunities to rehabilitate himself. It is acknowledged that many of his crimes were committed, if not most of them, when under the influence of drugs or arising from his drug addiction. However, it is not unreasonable for the Australian community to expect a person to obey the law and further engage in positive steps to overcome his difficulties. There has not been an effort to do so until recent times. Therefore, on an analysis of the two primary considerations as against the history of child abuse that he has suffered, the balance weighs in favour of the mandatory cancellation of his visa not being revoked. 100. With respect to the other considerations, the Applicant's length of time residing in Australia and the fact that all of his extended family reside in Australia must be weighed in his favour. Notwithstanding that such factors must weigh in his favour, the emphasis that the Tribunal can place upon these factors must be somewhat limited due to the fact that his offending commenced shortly after residing in Australia and has continued largely unabated until recent times when he was taken into custody. By reason of his frequent periods of imprisonment, his contribution to Australia in terms of employment has been limited. It is conceded that with respect to future employment possibilities, there was evidence from the Applicant that he has an opportunity to work with his stepfather's business, amongst others, in the event that he was released into the Australian community. However, there was no corroboration from any other source of this evidence. It is also acknowledged and accepted that the Applicant's immediate family and principally his mother are likely to offer him support in the event that he were released into the Australian community. The Tribunal further acknowledges that the strength, duration and nature of the Applicant's ties to Australia do weigh, to some reasonable degree, in his favour. 101. By reason of the foregoing analysis, having weighed up the primary and the other considerations that the Tribunal is required to take into account as prescribed by the Ministerial Direction, the conclusion is that the reviewable decision was preferable. Accordingly the Tribunal affirms the reviewable decision. (Citations omitted.)

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Tribunal's reference to the applicant's homelessness 23 This first ground of review relates to the Tribunal's consideration of the strength, nature and duration of the applicant's ties to Australia, being a consideration to which the Tribunal is directed by paragraph 14(1)(b) of Direction No. 65. Paragraph 14.2(1) of Direction No. 65 in turn informs the nature of that consideration: … Reflecting the principles at 6.3, decision makers must have regard to: a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more time should be given to time the non-citizen has spent contributing positively to the Australian community. b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). 24 The Tribunal considered the applicant's ties to Australia at [73]-[82] of the AAT Reasons. The majority of these paragraphs were devoted to considering the applicant's links to his family members. The Tribunal found that: (a) as the applicant's adult daughter had made her way in life, and the Tribunal did not have evidence from her as to the effect the applicant's removal to the United Kingdom would have on her, the Tribunal was not able to place much weight on that relationship: ibid at [75]; (b) the applicant's deportation to the United Kingdom would have a significant effect on his mother: ibid at [76]-[77]; and (c) there was no evidence as to the effect that the applicant's removal to the United Kingdom would have on his grandfather, stepfather and sisters: ibid at [78]. 25 The Tribunal then turned its focus to the contribution made by the applicant to the Australian community, being a consideration raised in paragraph 14.2(1)(a)(ii) of Direction No. 65. The Tribunal concluded its assessment of the applicant's ties to Australia as follows: 80. The Tribunal also needs to consider what contribution the Applicant has made to the Australian community. There is limited evidence as to what employment the Applicant has had during his time in Australia. That evidence reveals some jobs largely of a manual nature for limited periods which have of course been punctuated or terminated by his periods of imprisonment. Further, particularly in the reasons provided by the sentencing judges on occasions when he has appeared in court that are in evidence it is apparent that the Applicant has had several protracted periods of homelessness. 81. For these reasons it is apparent that only slight weight can be given to his time spent contributing positively to the Australian community in the relevant sense it is a factor significantly outweighed by the reality that his offending was far more extensive over a sustained timespan and involved serious crimes. 82. It is considered by the Tribunal that, all these matters considered, the strength, nature and duration of the Applicant's ties to Australia weigh to some reasonable degree in favour of revoking the mandatory cancellation of the Applicant's visa. (Citations omitted and emphasis added.) 26 The Tribunal's reference to the applicant's homelessness in the passages emphasised above, and its application of that fact, founded the applicant's first ground of review.

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Consideration 32 It is convenient to start with the applicant's submission that the Tribunal "took into account a mandatorily irrelevant consideration" by referring to the applicant's periods of homelessness in Australia. 33 For an administrative decision-maker to commit a jurisdictional error by taking a particular consideration into account in the course of undertaking his or her statutory function, that consideration must be "a legally irrelevant, that is prohibited, consideration": Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150; 254 FCR 341 at [12] per Besanko, Perram and Robertson JJ (emphasis added); see generally Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at 281-282. As such, where a statute confers a discretion which is in its terms in unconfined, such as under s 501CA(4)(b) of the Act, the permissible considerations in the exercise of that discretion are also unconfined "except in so far as there may be bound in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J. 34 In my view, any homelessness experienced by a non-citizen while living in Australia is not inherently a mandatorily irrelevant consideration for the purposes of a decision under s 501CA(4)(b) of the Act in the sense that it must, in all circumstances, be prohibited or forbidden from consideration. Contrary to the submission of the applicant, that fact will not always be so foreign to the subject-matter, scope or purpose of the Act and Direction No. 65 such as to amount to a legally irrelevant consideration. 35 To start, the purpose of the Act is "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens": s 4(1). To advance this purpose, the Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act": s 4(4). The mandatory cancellation of a non-citizen's visa in accordance with s 501(3A) is one means by which such removal or deportation may occur. 36 Direction No. 65 informs necessary considerations for the purposes of exercising the broad discretion under s 501CA(4)(b)(ii). In outlining certain principles to guide decision-makers, paragraph 6.3(5) of Direction No. 65 expresses that the level of Australia's tolerance of any criminal or other serious conduct will vary depending on the extent to which the non-citizen has been "participating in, and contributing to, the Australian community". And, as extracted above at [23], paragraph 14.2(1)(a)(ii) directs that more weight should be given to the strength, nature and duration of the non-citizen's ties to Australia where he or she "has spent contributing positively to the Australian community". 37 In circumstances where Direction No. 65 leaves undefined the meaning of participating and contributing to the Australian community, and the meaning of that phrase is not otherwise controlled by the terms of the Act, there is significant breadth to that phrase. That said, there may, in theory, be circumstances where the manner of a decision-maker's reference to, or application of, a non-citizen's homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers' powers. However, my view, for the reasons explained below, is that the Tribunal's application of the applicant's periods of homelessness falls within the legally acceptable scope of considerations under s 501CA(4)(b)(ii). 38 The Tribunal's reference to the applicant's periods of homelessness must be construed and considered in light of, first, the manner in which representations were made by, or on behalf of, the applicant and, second, the position and role of the reference to the applicant's homelessness in the context of the Tribunal's reasons. 39 In the applicant's revocation request form, he was asked to list "positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc". In response, the applicant stated that he had worked for one year for an organisation that planted thousands of trees at local parks. He also stated that he had acted as a waiter for someone in 1995. The applicant was accordingly representing that the work he had performed in these roles formed a positive contribution to Australia which the decision-maker ought take into account. It was these representations that ostensibly formed, at least in part, the basis for the Tribunal's conclusions in the second and third sentence in [80] of the AAT Reasons that "[t]here is limited evidence as to what employment the Applicant has had during his time in Australia" and that such "evidence reveals some jobs largely of a manual nature for limited periods which have of course been punctuated or terminated by his periods of imprisonment". 40 The fourth and final sentence of [80] of the AAT Reasons, which raised the applicant's "several protracted periods of homelessness", and is now impugned by the applicant, should be read as relating to, and completing, the Tribunal's inquiry in the early parts of that paragraph as to the contributions made to Australia by the applicant through any employment. That is, the Tribunal was not observing in the abstract that the applicant has homeless for prolonged periods, and that this fact counted against him in his revocation application. Construed properly, the Tribunal was utilising the fact of his homelessness to illustrate the context for, and consequences of, the limited employment engaged in by the applicant. 41 Construed in this manner, the way in which the Tribunal referred to the applicant's periods of homelessness does not amount to the Tribunal having taken into account a legally irrelevant consideration, and neither does it evidence that the Tribunal asked itself the wrong question, under or constructively failed to apply, Direction No. 65. The Tribunal was, in my construction, directing itself in the impugned passage to the extent of employment engaged in by the applicant for the purposes of assessing his positive contributions to the Australian community. The applicant's prolonged periods of homelessness were an unfortunate, but legally relevant, contextual consideration in undertaking that assessment. 42 For these reasons, the first ground of review raised by the applicant must be dismissed.

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Tribunal's questioning of lack of medication or treatment 44 Prior to assessing the considerations prescribed by Direction No. 65, the Tribunal set out the applicant's background and aspects of his evidence. This included recounting the applicant's history of offending at [31]-[34] of the AAT Reasons. The applicant's second ground of review impugns a particular statement made by the Tribunal in the course of considering this history. 45 After outlining the applicant's history of custodial sentences, as was summarised above at [7], the Tribunal expressed the following: 34. In the course of submissions concerning an aspect of the Applicant's offending the Tribunal was referred to the reasons for sentence of Judge McInerney of 28 July 2011. In the course of those reasons at [27], Judge McInerney referred to sentencing principles identified in the case of R v Verdins. The Victorian Court of Appeal reformulated sentencing principles where a defendant suffered from impaired mental functioning, whether temporary or permanent ("the condition"). Those reformulated principles are referred to in their entirety. However, the Court of Appeal did observe that such a condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. The Respondent did acknowledge that the Verdins principles did apply to the Applicant and the "condition" with respect to his functioning, in this matter. The Tribunal acknowledges that in undertaking this review the Verdins principles should be (and have been) taken into account when weighing up the Applicant's moral culpability of his offending conduct. However, it is difficult for the Tribunal in the absence of appropriate expert evidence from healthcare professionals as to the nature and severity of his condition to make a precise assessment as to the extent that such moral culpability will be reduced in accordance with such principles. (Citations omitted and emphasis added.) 46 This passage was accompanied by a number of footnotes. The sentence emphasised above concluded with footnote 8. That footnote was lengthy, and expressed the following: However, there was really limited medical evidence available to the Tribunal to enable it to assess with any level of accuracy how to apply the Verdins principles to the Applicant's condition overall. There was no specific medical report prepared for the Tribunal for the purposes of this application or, the initial request for revocation of the mandatory cancellation decision with the Respondent. This is unfortunate. There were clinical notes produced by the Applicant from the Monash Medical Centre that appeared to have been provided to the Applicant or his legal advisors under a freedom of information request. However, the documents produced from the Monash Medical Centre did include the report from Jeffrey Cummins dated 12 October 2010 which was referred to in Judge McInerney's reasons for sentence of 28 July 2011 in which he applied the Verdins principles. The report of Cummins has been considered by the Tribunal, as it was by Judge McInerney. Cummins stated, amongst other things, that the Applicant "…has an appalling Criminal History Record." The contents of the report are referred to in their entirety, however the author concludes that the Applicant's prognosis is very poor and in his opinion his offending behaviour is secondary to his mental health problems. The reason this aspect of the report is referred to is that the Applicant gave evidence that he is not taking any medication at this time, nor does it seem is he undergoing any treatment, and one has to question whether in the light of the observations made by Cummins this is appropriate. This assumes further relevance in the context of the Cummins report because its author noted in one paragraph that the Applicant during the course of a consultation "spontaneously stated - 'The trouble is, last time I was only out for about 14 days. I can't be released without being stabilised on the right medication. I feel I've been repeatedly traumatised by the system. I still feel like I'm a little kid. My moods change all the time and my personality changes. I can't concentrate. I last had a seizure about 2 1/2 months ago.' In response to direct questioning, he said when he last had his liberty he was abusing alcohol and cannabis but no other illicit drugs." This is of concern and mirrors a submission made with considerable force and effect by Mr Cunynghame on behalf of the Respondent that whilst the Applicant may be drug and alcohol free at the moment and has been for some time, this is in the context of when he is in custody and he does his best in a regulated environment. Were he to be released from detention and no longer subject to the controlled environment of that setting the risks of him returning to drug and alcohol use which might lead to commission of further crimes would be correspondingly increased. (Emphasis added.) 47 The Tribunal's questioning of the applicant's failure, at the time of the Tribunal's decision, to take medication or receive treatment in the passage emphasised above founded the applicant's second ground of review.

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Consideration 52 An administrative-decision maker may commit a jurisdictional error by making a finding, or engaging in reasoning, in the course of its decision-making process that is illogical or irrational: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] per Crennan and Bell JJ; BZD17 v Minister For Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 at [34] per Perram, Perry and O'Callaghan JJ; CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [58] per Murphy, Mortimer and O'Callaghan JJ. 53 Nevertheless, not every finding or reasoning that may be characterised as illogical or irrational will impugn the valid exercise of the decision-maker's jurisdiction. This was explained as follows by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55], in a passage approved in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60] per McKerracher, Griffiths and Rangiah JJ: … allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]. 54 Similar principles were more recently expressed by the Full Court in CGA15 at [59] as follows: Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was "material" to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [30]-[31] (Kiefel CJ, Gageler and Keane JJ); SZMTA at [2], [3], [48] and [49]. The appellant has the onus to show that the error is material: SZMTA at [4] and [41]. 55 Applying these principles to the current facts, even if the relevant statement by the Tribunal - questioning whether, in light of the comments in the Cummins report, it was appropriate for the applicant to not be receiving medication or treatment - may be characterised as a finding of the Tribunal, and even if that finding were characterised as illogical or irrational, my view, for the following reasons, is that such a statement was not material to the Tribunal's decision. 56 The immateriality of the statement is first demonstrated by the relatively inconsequential position and role of the statement in the Tribunal's reasons: see Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [67] per Middleton, Moshinsky and Anderson JJ. The Tribunal's reasons were of 101 paragraphs and 35 pages length. The statement impugned by the applicant was included in one sentence in a lengthy footnote. Moreover, the relevant footnote was included in the section of the Tribunal's reasons devoted to outlining the background to the applicant's history, which was set out prior to the Tribunal's substantive analysis of the considerations prescribed by Direction No. 65. 57 In this regard, s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) does not have the effect of deeming every finding in the Tribunal's reasons a factual determination material to its decision. That provision requires the Tribunal to include in its reasons "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". As evident, this imposes a requirement on the Tribunal to express material findings in its reasons. But it does not necessarily follow from that statutory language that everything stated in the Tribunal's reasons is material to its decision in the relevant sense (for which, see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252; 363 ALR 599; 75 AAR 75; 163 ALD 38 at [45] per Bell, Gageler and Keane JJ). To adopt what was expressed by the Full Court in Navoto at [68], even if the statement the subject of this ground of review may be characterised as a factual finding by the Tribunal, the mere inclusion of that finding in the Tribunal's reasons does not signify that the finding was a fact critical to [its] ultimate decision. If that was so, then any factual finding conveyed in the course of administrative reasons could be characterised as critical to the outcome. Depending on the context, a court upon review may be entitled in infer that any matter not included in the administrative reasons was viewed by the decision-maker as immaterial. But it does not necessarily follow that any finding of fact expressed in the administrative reasons may be characterised as critical to the ultimate decision. 58 There is moreover nothing in the balance of the Tribunal's reasons to magnify the significance of the Tribunal's statement. To explain, it necessary to extract the series of passages in the Tribunal's reasons that were raised by counsel as potentially relating to the applicant's mental health issues. The first set of passages involve the Tribunal's consideration of the nature and seriousness of the applicant's offending: THE PRIMARY CONSIDERATIONS … Protection of the Australian Community … Nature and seriousness of the Applicant's conduct … 44. … the Tribunal has the benefit of the sentencing remarks or reasons made by Magistrate Radford on 11 July 2016, Judge Mason on 31 August 2012, Judge McInerney on 28 July 2011, Judge King on 27 July 2004 and Judge Gebhardt on 24 January 2001. The contents of such sentencing remarks are referred to … and all described the offences as serious. It is acknowledged that in some of the sentencing remarks the magistrate/judge either applied the Verdins principles or acknowledged the Applicant's difficult personal circumstances and history which go some way in explaining or providing an understanding of his criminality. However, even Judge McInerney in applying the Verdins principles did observe "There is no doubt that this is, objectively, a very serious incident in the sense of a young boy being attacked going about his own business and in riding a bike through a park." This is by way of contrast to the observations of Magistrate Radford who stated that the Applicant's conduct on 8 April 2016 was amongst other things an: "Unprovoked attack", "…tram stop, asked for a cigarette and gets his face beaten twice", and "He's innocently standing at a tram stop and gets his head beaten." The Magistrate also stated "What is difficult is he's got a very good record of reoffending." 45. Notwithstanding the application of the Verdins principles and of course taking into account the extremely tragic history that the Applicant has had both as a child, a youth and an adult with respect to both sexual abuse, addiction and what would appear to be mental health issues, which the Tribunal has also taken into account, his offending is serious. 46. Further, notwithstanding the application of the Verdins principles as noted above and the consideration given by each of the sentencing judges to the background and history of the Applicant with respect to the abuse that he suffered, the sentences imposed for such offending were significant and a reflection again of the seriousness with which the judges considered the offending by the Applicant[.] 59 As can be seen, the Tribunal referred in this extract to the Verdins principles, which were also the subject of [34] of its reasons (in which the relevant footnote was located). However, as the passages above were directed to a retrospective assessment of the seriousness of the applicant's offending, there was no reference to, or application of, the Tribunal's impugned statement regarding the applicant not receiving medication or treatment for his mental health issues. 60 The next passage derives from the Tribunal's consideration of the risk to the Australian Community should the applicant reoffend back in the community: Risk to the Australian Community should the Applicant reoffend … 53. The Tribunal finds that there is some tension reconciling the evidence given by the Applicant both in documentary form and viva voce in that, whilst acknowledging (as was conceded by the Respondent) that he has been drug-free for approximately two years and expressed a desire to avoid taking drugs in the future and relapsing into a life of crime, his history of such drug abuse and crime is not a good one. Further, as previously noted there is a concern that whilst he has remained drug-free in the prison and an immigration detention environment (where he had access to what would appear to be frequent beneficial counselling and practical life skill courses) one must be concerned about the pressures that he will face upon his release into the general population should the decision to cancel his visa be revoked, when he does not live in such a regulated environment under a heightened level of personal scrutiny with access to regular counselling services at his doorstep and practical life skill courses which are likely to keep his mind focused on drug and crime free goals. 61 If the Tribunal were to have applied the impugned statement in the course of analysing the considerations under Direction No. 65, this would have most likely have occurred in the passage above relating to the risks of the applicant reoffending. Indeed, this would be consistent with the form of reasoning in which the applicant said the Tribunal was engaged by expressing the impugned statement; namely that, if the applicant has a mental health decline, then there will be an increased risk that he will re-offend. Nevertheless, this passage does not express any concerns regarding the applicant's mental health issues. It instead centres on the risk that the applicant would be enticed to once again engage in drug abuse upon release into the community, with a correspondingly increase to the risk of him again engaging in criminal activity. 62 The next passage involves the Tribunal's consideration of the expectations of the Australian community: Expectations of the Australian community … 69. Also, there is the issue that the Applicant has had access to a variety of support measures, medical facilities, counselling and rehabilitation opportunities which he unfortunately chose in most cases either not to use or only use in a prison environment. It is regrettable that he did not see fit until very recent times to try and make more of an effort to overcome the drug, alcohol and mental problems that he faced. Particularly, when along the way he had those opportunities available to him. … 63 This paragraph possesses some parallels with the Tribunal's impugned statement in that the Tribunal expresses regret that the applicant only invested more effort in addressing his mental problems in recent times. However, the paragraph makes no reference to Mr Cummins' report and embodies a slightly different observation about the applicant not having taken steps in the past to address the root causes of his criminal behaviour. 64 The final passage to consider relates to the Tribunal's assessment of the extent of impediments to the applicant if he was returned to the United Kingdom: THE OTHER CONSIDERATIONS … Extent of impediments if returned to the United Kingdom … 85. The Applicant contended that given his "fragile mental health" for which the Australian community is significantly to blame, he is at risk of suffering decline which may ultimately result in suicide. His own evidence did not go that far. The evidence he gave was that he is not currently taking any medication or seeking other treatment for any mental health issue. He stated he was drug-free and had developed an array of strategies and tactics to deal with the potential risks of relapse. He had undertaken a number of courses whilst in custody and his subsequent detention, for the purposes of equipping him to deal with not only the issue of drug taking but anger management, stress management and breaking the cycle of reoffending. (Citations omitted.) 65 There is a connection between this passage and the relevant footnote insofar as there is repetition of the fact that the applicant gave evidence to the Tribunal that he was not receiving any medication or treatment for his mental health issues. However, unlike in the relevant footnote, the Tribunal did not repeat the statement now impugned by the applicant. 66 In my view, none of these passages convert the Tribunal's impugned statement into one that may be characterised as material to the outcome of its decision. The relevant statement by the Tribunal was simply not applied by the Tribunal in a manner that influenced its substantive reasoning. Even assuming the statement could be characterised as an illogical or irrational finding, it did not deprive the applicant of the realistic possibility of a successful outcome. 67 For these reasons, the Tribunal's statement impugned in this ground of review is relevantly analogous to the degree of significance attributed to a finding of the Assistant Minister in Navoto. In that case, the Assistant Minister expressed a finding that he considered that appropriate treatment and medication for the applicant's depression and anxiety was likely to be available in Fiji, although the Assistant Minister acknowledged that such treatment and medication may not have been of the same standard as that available in Australia. 68 The Full Court held in Navoto that, even if the Assistant Minister's finding regarding the availability or appropriate treatment and medication in Fiji was unsupported by evidence, it would not amount to a jurisdictional error as the finding was not a critical step in the Assistant Minister's ultimate conclusion: ibid at [66]. One of the bases for reaching that conclusion was expressed by the Full Court as follows at [67]: The first basis for the conclusion that the Assistant Minister's finding was not a critical step underpinning the Assistant Minister's conclusion is an inference drawn from the relatively subordinate position of that finding in the Minister's Reasons. Other than the Assistant Minister's finding now under consideration, there is no reference to the appellant's conditions, or access to appropriate treatment or medication, operating as an impediment to the appellant's removal. The only other references to the appellant's depression by the Assistant Minister were in the context of factors contributing to his past offending, and the likelihood that he will offend again: Minister's Reasons at [43], [44] and [46]. As such, the Assistant Minister's finding in respect of the availability of appropriate treatment and medication appears on the face of his reasons to have played a relatively minor part in the totality of his decision. 69 Like the Assistant Minister's finding in Navoto, the statement by the Tribunal in this case formed a subordinate role in the relevant decision. And, as explained above, subsequent references in the Tribunal's reasons to the applicant's mental health issues did not amplify the Tribunal's impugned observation beyond a legally inconsequential role in the totality of the Tribunal's decision. For these reasons, the second ground of review raised by the applicant must be dismissed. 70 Although that analysis is sufficient to dispose of the applicant's second ground of review, I observe in passing that the applicant's submission in this Court that "[t]here was no evidence before the Tribunal that suggested the Applicant, at the time of the Tribunal's decision, had any mental health condition" is questionable. Although there may not have been any documentation evidencing a medical diagnosis before the Tribunal, the applicant's mental health challenges were plainly raised on the available materials. The applicant's own written submissions to the Tribunal accepted the applicant's "fragile mental health status". In sentencing remarks in July 2016, for instance, a Magistrate expressed that there was no doubt mental health issues were "going on" with the applicant. In addition, the email from the applicant's mother to the Department referred to the applicant's "mental health issues" on numerous occasions, and also referred to her previous requests to the courts to provide the applicant "mental health care as an impatient". She also concluded her email by alluding to the potential consequences "due to his mental health" if he were returned to the United Kingdom.

[23]

Relevant representations 74 The first document provided on behalf of the applicant in response to the Department's invitation was a one page email from the applicant's mother, which was sent on 12 January 2017. That email included the following: During this time [the applicant] was attending a special learning school in Heathmont Ringwood. Whilst at this school some of the boys introduced..i say lightly..[the applicant] to some people in Coldstream. These people subsequently turned out to be running a pedophile ring. [The Applicant] was repeatedly abused by these people and their clients, all the time being surveyed by the CEU who we later found out had had them under surveillance for 5 years. My son,my daughters and my marriage all suffered due to the blacklash from these events also with me loosing a pregnancy. [The applicant],by the time i found out about the pedophiles and the abuse,agreed to put an end to this 5 year cycle of abuse and protect everyone by taking the stand and giving evidence against them. At this time [the applicant] had to go into police protection for about a year again seperated from his family,as to keep [the applicant] calm i alone was allowed to visit him constantly being aware not to be followed but due to my visits he was constantly moved from one safe house to another. (Emphasis added.) 75 The second document provided in support of the applicant's request was his revocation request form, which the Department stamped as having been received on 24 January 2017. One of the documents attached to the completed form was a list of enclosures. In the list, the applicant referred to his family having sent documents via email to the Department. In doing so, the applicant was evidently seeking to incorporate his mother's email, as relevantly extracted above, into his revocation request. 76 The applicant was required to make representations within 28 days after he was given notice of the original decision and particulars of relevant information: reg 2.52(2)(b) of the Migration Regulations 1994 (Cth). Although that deadline passed, the applicant sent a further handwritten letter to the Department pleading his case, which was stamped as having been received on 8 March 2017. This letter again referred to, amongst many other matters, the fact he had given evidence against the paedophile ring, including that he "went to court and got some of the abusers locked up for 10 yrs".

[28]

Consideration 86 The Tribunal's only direct reference to the applicant having given evidence in court against his abusers in the paedophile ring was at [37] of the AAT Reasons. That paragraph, which was included in a section of the Tribunal's reasons outlining the history of the applicant's abuse, provided the following: THE HISTORY OF CHILD ABUSE SUFFERED BY THE APPLICANT AND ITS CONSIDERATION IN THIS APPLICATION … 37. The sexual abuse that he suffered occurred both in the United Kingdom and after his arrival in Australia. In particular during his time in Australia he was in some form of foster care and a hostel in Box Hill. It was during his time there that he was sexually abused. In the course of enduring such sexual abuse he was also introduced to drugs by his abusers. He stated that ultimately he gave evidence against his abusers at a criminal trial and received modest compensation. (Emphasis added.) 87 The fact that the applicant gave evidence against his abusers was not, however, referred to in the Tribunal's subsequent substantive analysis of the considerations under Direction No. 65. As such, the immediate dispute between the parties is not in relation to whether the Tribunal gave sufficient intellectual consideration to the relevant representation. It is clear that no such consideration is expressed in the Tribunal reasons. The dispute is instead in relation to whether the relevant representation is appropriately characterised as sufficiently significant such that the failure of the Tribunal to have considered it means that the Tribunal committed a jurisdictional error. For the reasons that follow, my view is that the relevant representation was not so significant. 88 As a starting point, the inclusion of a factual matter in the "representations" provided by a non-citizen to a decision-maker under s 501CA(4) does not inherently constitute a submission that the factual matter is a reason why the visa cancellation should be revoked. A factual matter may properly be characterised as a "representation" to the Tribunal and only form part of the background to the matters critical for the Tribunal's consideration. This follows from the text of s 501CA(3)(b) of the Act, which requires the Minister to invite the non-citizen to make representations broadly "about revocation of the original decision" (emphasis added). This evidently encompasses, but is broader than, submissions directly upon the reasons why the original decision should be revoked. It is accordingly critical to assess and characterise the representations that were said to have been overlooked by the Tribunal in this case. 89 Contrary to the submissions of the applicant, the fact that the applicant provided evidence against the paedophile ring that abused him was not clearly articulated as a matter constituting a reason for the revocation of the cancellation of his visa. This is evident from a collective consideration of the materials submitted to the Department and the Tribunal and the written submissions provided on the applicant's behalf to the Tribunal. 90 The references to the applicant having given evidence in the documents provided by, or on behalf of, the applicant, as were extracted above at [74]-[76], were, properly construed, not framed as arguments as to why the visa cancellation should be revoked. Although the applicant's provision of evidence against the paedophile ring may be viewed as commendable, the manner in which that event was noted amongst many other background matters did not promote it to being one which was so significant such that the failure of the Tribunal to refer to it means that the Tribunal did not lawfully discharge its statutory task. The references to the applicant giving evidence in court instead merely formed aspects of the applicant's history. 91 Neither do the other references raised by the applicant, as extracted above at [77]-[78], support the applicant's characterisation of the relevant representation. The internal "Revocation Submission", apparently prepared by the Department to assist the delegate, simply referred to the relevant representation in a lengthy summary of the representations made by, or on behalf of, the applicant. Likewise, the reference to the representation in the delegate's reasons was one dot point in the summary of the representations made. It was not subsequently referred to in the analysis of the considerations under Direction No. 65 by the delegate. 92 Finally, the written submissions of the applicant to the Tribunal, which were prepared by counsel, referred to the applicant giving evidence in court against his abusers as part of the factual background. However, no reference was made to this event in addressing the considerations under Direction No. 65. The submissions were instead more prominently directed to the future risk of drug use and re-offending by the applicant. Although the submissions referred to "the failure of the Australian community to protect the applicant from expose [sic] to paedophilia and other abuse", it did not refer to the applicant giving evidence in court as a factor positive to his case. Furthermore, as the applicant received legal assistance from counsel in the Tribunal, my view is that there is limited weight to the applicant's observation that he was unrepresented at the time of initially making his revocation request. 93 Instead of treating the fact that the applicant had given evidence in court against the paedophile ring as a discrete consideration (which was unnecessary for the reasons explained above), this event was likely subsumed in the Tribunal's consideration of the history of abuse suffered by the applicant. This is consistent with the Tribunal having referred to the relevant representation in its reasons under the heading relating to "[t]he History of Child Abuse Suffered by the Applicant". As a result of this history, the Tribunal apparently attributed material weight in favour of revocation by stating at [97] that, "[g]iven the history of child abuse suffered by the Applicant, as recounted in the material in evidence before the Tribunal, there is much force in his contention that the Australian community owes him a debt because it failed him". 94 Furthermore, the applicant's related submission that the Tribunal rigidly adhered to the considerations prescribed in Direction No. 65, which thereby caused it to not consider the relevant representation, must also be rejected. The Tribunal expressly acknowledged at [90] that it could have regard to matters other than the expressly prescribed considerations (and indeed did refer to a submission of the applicant relating to a consideration not expressly contemplated by Direction No. 65). However, as explained, it was not necessary for the Tribunal to also refer to the fact that the applicant gave evidence against his abusers as a separate consideration. 95 The third ground of review raised by the applicant must accordingly be dismissed.

LPGJ v Minister for Home Affairs

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Judgment (29 paragraphs)

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Legislation Cited (3)

Cases Cited (19)