Did the Tribunal fail to take into account the various submissions and/or evidence?
65 Ground 1 reads as follows:
When considering the likelihood of the applicant reoffending, the Tribunal engaged in jurisdictional error in that it failed to consider claims or component integers thereof in respect of one or more issues.
Particulars
Any or all of the following matters were claims or component integers raised by the applicant or otherwise squarely raised by the material before the Tribunal in relation to the likelihood of the applicant reoffending that the Tribunal failed to consider:
a. the applicant was also minor at the time he committed the sexual assault offences, was under the Federal and State ages of consent at the time, the offending was not a case of an adult engaging in sexual behaviour with a minor, and as such his case should be treated differently from one involving an adult sex offender (e.g. Applicant's Statement of Facts, Issues and Contentions (ASFIC), [79]-[82]);
b. juvenile sex offenders were less likely than adult child sex offenders from committing further sexual offences (e.g. ASFIC [81]-[82]);
c. the applicant had steered clear of negative peers while in prison, which was a recognised indicator of an intention to break free from antisocial influences (e.g. ASFIC [96]-[98][126(f)]);
d. there was an incorrect impression that the applicant did not care about his rehabilitation caused by him declining certain courses in order to maintain contact with his family. This was not a frivolous choice but, rather, the visits were a significant factor in maintaining morale and good behaviour (e.g. ASFIC [102]-[104]);
e. the applicant's experiences in prison (including being assaulted two days after being sentenced for the sexual assault offences) caused him to commit to maintaining a crime-free and drug-free life (e.g. ASFIC [111]-[120]; [126(b)]); and
f. The applicant's methamphetamine addiction contributed significantly to his behaviour, whereas he had ceased drug use altogether since his incarceration in late January 2017 despite the availability of drugs in prison (e.g. ASFIC [129]-[137]; [126(a)]).
66 The first and second matters relate to the same subject, that is, the fact that the applicant was himself a child at the time he committed the sexual offences. All the other matters relate to the applicant's prospects of rehabilitation.
67 Ground 5 reads:
The Tribunal engaged in jurisdictional error by failing to take into account relevant considerations.
Particulars
a. The applicant repeats grounds 1 [and] 4 and says that, in the alternative, these matters constituted relevant considerations that the Tribunal failed to take into account.
b. Further and in the alternative, the Tribunal failed to take into account the passage from a report of the WA Law Reform Commission quoted at ASFIC [81].
c. Further and in the alternative, the Tribunal failed to take into account the expert evidence given by Mr Cicchini referred to at ASFIC [81]-[82], [96]-[97], [102]-[103], [140].
d Further, by failing to take into account any or all of the matters referred to at (a)-(c) above, the Tribunal constructively failed to consider the likelihood of the applicant reoffending and expectations of the Australian community or, alternatively, failed to consider the likelihood of the applicant reoffending and expectations of the Australian community in compliance with its statutory obligations.
68 In his report, Mr Cicchini was critical of the delegate's conclusion that the Australian community would expect that the applicant should not hold the visa, given "the very serious nature of his sexual offending". He said the statement might be valid but would not be supported "if the community was made aware of the low incidence of the juvenile sex offender becoming an adult sex offender". He said that the low incidence of adult sex offending by juvenile sex offenders was "clearly recognised" by the WA Law Reform Commission and on the last page of his report extracted the following passage from its Final Report on the Community Protection (Offender Reporting) Act 2004, published in 2012:
In general terms, it is well recognised that juveniles should be treated differently and separately from adults. One reason is that most juveniles 'grow out' of crime by the time they reach adulthood. Another is the need to focus on rehabilitation and to avoid 'labelling and stigmatisation'. In the context of this reference the Commission highlighted important differences between juvenile child sex offenders and adult child sex offenders, including that juvenile child sex offenders are less likely than adult child sex to commit further sexual offences.
(Original emphasis.)
69 Mr Cicchini was also critical of the delegate for "applying a prediction of an assumed future risk being posed to the Australian community", which he said was apparently based on the assumption of child sex offenders becoming adult sex offenders, an assumption described as incorrect, once again citing the WA Law Reform Commission Report.
70 Elsewhere in his report, Mr Cicchini emphasised that the applicant was "a 15 year-old child" at the time of the sexual offending and described his offending as a case of "child-on-child offending". He also wrote (without alteration):
[It] is well known that the incidence of children sex offenders becoming adult sex offenders is minimal, and for that reason it has been clearly recommended that such offenders ought not to be treated the same as adult offenders, including with regard to mandatory reporting and supervision requirements in the community. I feel that in both the sentencing remarks and the subsequent quotations of those remarks, lip service is paid to his youth at the time of offending and there is no actual appreciation in real terms that that the offender was a 15-year-old boy, and not the man he now is.
71 Mr Cicchini returned to the subject in his concluding remarks, noting that "WA legal authorities argue against child sex offenders being regarded and treated the same as adult sex offenders, most clearly because they do not invariably pose a risk of continuing to offend sexually in adulthood". Again he referenced the WA Law Reform Commission Report.
72 In his Statement of Facts, Issues and Contentions, the applicant submitted that the Tribunal should consider that this is not a case of adult child sexual offending and that the Tribunal would fall into error if it were to ignore the larger age gap between most child sex offenders and their victims. The submission went on to refer to Mr Cicchini's opinion that the WA Law Reform Commission Report had noted "the low incidence of juvenile sex offenders becoming adult sex offenders" and cited the passage he had extracted from the Report as well as the passage I quoted at [68] above.
73 The proposition that the Tribunal failed to take these matters into account must be rejected. As the Minister submitted, that is hardly a fair reading of the Tribunal's reasons. In effect, the applicant's complaint can only relate to the weight the Tribunal attached to this evidence. In any case, while I accept that Mr Cicchini's evidence was relevant to the risk of the applicant reoffending, it could have had no bearing on the expectations of the Australian community for the reasons given by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]-[77], which the Tribunal cited in its decision. In short, the expectations of the Australian community are defined in the Direction and they were adverse to the applicant:
In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
See also Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [64].
74 The Tribunal considered Mr Cicchini's evidence at some length. It quoted from two of the above passages at [72] and [73] of its reasons. The Tribunal did not extract the quotation from the WA Law Reform Commission Report, but it pointed out that this was the source cited by Mr Cicchini. The Tribunal then observed at [74]:
At the hearing Mr Cicchini was cross-examined at some length about what test or measure should be applied to determine a likelihood of recidivism or future criminal behaviour in juvenile offenders if it is inappropriate to apply the adult test criteria. Unfortunately no clear answer emerged from Mr Cicchini's evidence. That is not a criticism of Mr Cicchini but rather, the Tribunal suspects, a product of the inherently imprecise "science" of predicting future behaviour. As is probably the case with most people, whether there is a repeat of previous criminal behaviour will depend on a whole range of factors and outside forces, environment and circumstances. That, unfortunately, is the reality in which the Tribunal must make a decision.
75 The applicant's counsel submitted that the Tribunal did not indicate whether it accepted or rejected the proposition that juvenile child sex offenders are less likely than adult child sex offenders to commit further sexual offences. He argued that this was "actually the critical question". He also complained that the Tribunal did not deal with the WA Law Reform Commission's opinion that most juveniles grow out of crime.
76 The Tribunal was not obliged to make a finding on either question. The Tribunal's duty was 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": see Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B). That duty does not entail making findings on questions of fact that it did not consider material to its decision. The section is not significantly different from s 430 of the Migration Act. In Yusuf, McHugh, Gummow and Hayne JJ held at [68] (Callinan J agreeing at [217]), that the Tribunal's duty under s 430 was to set out its findings on those questions of fact which it considered material to its decision and to the reasons it had for reaching that decision. In the present case, whether or not juvenile child sex offenders are less likely than adult child sex offenders to commit further sexual offences or whether most juveniles grow out of crime was not a question the Tribunal considered material to its decision or to the reasons it had for reaching that decision.
77 The critical questions for the Tribunal were those raised by the Act and the Direction. In the context of the point the applicant was making, it was not whether juvenile sex offenders are less likely than adult sex offenders to commit further sexual offences, but whether, and if so to what extent, the applicant might reoffend. While an answer to the former question might be relevant to the latter, it was not determinative. It would certainly not be dispositive of the Tribunal's review of the delegate's decision. In considering the question it was required to answer, it is plain that the Tribunal took into account Mr Cicchini's opinions, the source material for those opinions, and the applicant's submissions based on them. Its failure to refer to the WA Law Reform Commission's opinion that most juveniles grow out of crime is entirely understandable, given that the evidence in the case was that the applicant did not grow out of crime. To the contrary, he continued to offend after he turned 18. Whatever the position might be in most cases, the applicant's position was different.
78 As I mentioned earlier, the other four matters the applicant alleged the Tribunal disregarded relate to the subject of rehabilitation.
79 The first is that the applicant "steered clear of negative peers while in prison".
80 In his Statement of Agreed Facts, Issues and Contentions, the applicant submitted (at [96]):
Mr Cicchini notes that association with a negative peer group at "a crucial stage of development in adolescence… shaped his slide into a problem with alcohol and drug use and drug-dependence." Since being imprisoned, the Applicant has been noted to keep to himself within his unit and has avoided interacting with drug users in prison. Given the fact that his prison block houses approximately 50 - 60 adult male prisoners, the Applicant's choice to steer clear of negative peers whilst in prison should be given appropriate weight by the Tribunal.
81 The Statement also referred (at [97]) to the assertion made by Mr Cicchini that professionals in the justice system recognise that "prisoners who want to break free from antisocial influences often do so by distancing themselves from other prisoners, particularly those who spend time discussing crime".
82 At [77] of its decision record the Tribunal referred to the evidence the applicant led on this subject, observing that the applicant's approach "involved the making of personal decisions to not become involved with drug use or drug users whilst in prison in order to be better positioned to stay drug free in the future". It is true that the Tribunal made no other specific reference to this evidence, but it is apparent that it took both the evidence and the submission into account. It is clear from its reasons that it considered it was entitled to little, if any, weight.
83 The second matter was the allegedly "incorrect impression that the applicant did not care about his rehabilitation" caused by his decision to prefer visits from his family to enrolling in courses and that the applicant's choice to prefer contact with family over undertaking courses was not a frivolous one but "a significant factor in maintaining morale and good behaviour".
84 This proposition was drawn from Mr Cicchini's report. The passage was extracted at [102] of the applicant's Statement of Facts, Issues and Contentions:
In my opinion, the reported outcomes…involve the selective use of information in prison reports, creating an incorrect impression that he did not care about his rehabilitation. In reality, he was essentially on a cleft stick - a "Sophie's choice" type situation - which is not referred to in the documentation. It is well known in the justice system that visits from loved ones are a significant factor in maintaining morale and good behaviour by offering hope for the future, as well as help retain a support system to facilitate reintegration upon release to the community, so the choice made was not a frivolous one. In my opinion, the documentation regarding his non-completion of the Pathways programme is incomplete with regard to reporting relevant information, which distorts the real picture.
(Emphasis added.)
85 The words emphasised in the extract from Mr Cicchini's report were quoted verbatim by the Tribunal at [78] of its reasons. In these circumstances, I cannot accept that the Tribunal overlooked the contention. I am not persuaded that the Tribunal's failure to refer to the whole passage or to specifically mention the statement two sentences later about the significance of visits from loved ones indicates that the Tribunal failed to have regard to it. Rather, it reflects the significance the Tribunal attributed to that statement in its assessment of the applicant's commitment to rehabilitation. The Tribunal referred to a number of passages in the applicant's cross-examination which explored the applicant's attitude to rehabilitation, including at [80] to an exchange in which the applicant said that he decided that his visits were "more important at the time" than finishing the Pathways sessions and that he was only doing the program so that he could get parole, and to his concession that he was not undertaking the program in order to change his behaviour.
86 At [103], the applicant's Statement of Facts, Issues and Contentions quoted from his partner's statement that he had told her that he would not have been able to see his family for six months if he undertook one of the courses. At [104], the Statement referred to the offer of a six-month sex offenders treatment program in June 2018 which would have taken place in Bunbury and indicated that the applicant declined to participate in the program because his family members would have found it "extremely difficult" to visit him.
87 I am not persuaded that the Tribunal ignored these parts of the Statement either, merely because it did not refer to them. As the Minister submitted, the Tribunal was not obliged to give a line by line refutation of the applicant's contentions. Once again, it seems to me that the absence of a reference is more likely to reflect the Tribunal's view of their importance in the scheme of things. At [82] the Tribunal observed:
The obvious concern that the Tribunal has is that, for whatever reasons, the Applicant has undertaken no rehabilitation courses during the two years that he has been in prison. It may be that more courses should be available to prisoners or prison authorities should be more flexible, however, the bottom line is that on two occasions the Applicant has made a choice not to undertake the rehabilitation courses which were available to him. While understandable at a personal level, the choice that the Applicant made to decline the rehabilitation courses in favour of family visits was made on the basis of what was more appealing to him in the short term rather than on what was best for the community in the long term.
88 The Tribunal's point was that the applicant's reasons for not undertaking rehabilitation courses were immaterial; whatever they were and no matter the effect the visits from his family may have had on his morale, he opted not to undertake them. At [83]-[85] the Tribunal reflected further on his attitude towards rehabilitation:
83 The Applicant's attitude towards rehabilitation, at least to formalised rehabilitation programs, could best be described as ambivalent if not dismissive. It became clear in cross-examination that the Applicant did not consider that the Pathways course, a program that has been running in West Australian prisons for many years, would be of any benefit to him. His only interest in the program was to get parole, not to address his psychological and behavioural issues. This is made clear in the answers to the questions put to him in cross-examination…
…
85 The Applicant has not undertaken any rehabilitative programs, seems not to consider them to be effective and has made no serious attempt to put in place any sort of counselling or other program if he were to be released back into the community. The sum total of his "rehabilitation" appears to be his assertion that he has not taken drugs while he has been in prison and that he won't return to a life of methamphetamine abuse if he was released back into the community".
89 I will return to the last item the Tribunal mentioned in [85] shortly. At [96] the Tribunal revisited the subject, accepted that the applicant had reasons for not undertaking any rehabilitation courses in the two years he had been in prison but observed that "in the end it was his choice not to do so". At no time did the Tribunal describe the choice as "frivolous".
90 The third matter the applicant alleges the Tribunal failed to take into account is the contention that his experiences in prison caused him to commit to a life free of crime and drug-abuse.
91 The Statement of Facts, Issues and Contentions at [111]-[117] detailed assaults upon the applicant in prison, the first of which resulted in burns and severe bruising after which his mother and girlfriend noticed he had become withdrawn and increasingly "paranoid", the second where he alleged he had been grabbed in the groin area, placed in a headlock, and had his glasses broken. At [118]-[120] it was submitted that "his experiences in prison have been a serious wake-up call for him to change his behaviour"; he does not ever want to return to prison, and he is committed to a life free of crime and drugs. Paragraph [118] reads as follows:
Suffice to say, his experiences in prison have been a serious wake-up call for him to change his behaviour. He states:
I really, really do not ever want to come back to jail. The fact I was going to jail really hit me for the first time while I was on the prison bus. Before that, while I was using drugs, it didn't really seem real and I wasn't thinking about consequences. When I was on the bus I realised I would be in jail for one and a half years. I realised I couldn't see my girlfriend, I couldn't be at home for dinner with my family - all the things I didn't care about when I had them I started to care about when I didn't have them anymore. I decided to use this time in jail to turn my life around.
92 I can find no reference to these matters in the Tribunal's reasons. But I am not persuaded that this is a material omission. That is because the contention that the prison assaults had any long-term salutary effect on his criminal or anti-social behaviour appears to be entirely speculative. I was not taken to any evidence to support it. That is not the effect of the remarks cited at [118] of the Statement of Facts, Issues and Contentions. There is no suggestion in Mr Cicchini's report that his prison experiences inspired him to change his behaviour. The only reference to the effect of a prison assault is in the applicant's statement to the Tribunal at [33] where he said with respect to the first assault:
The bashing made me paranoid, that's why I usually stay in my cell. I am skeptic (sic) about meeting new people. Before I came to jail I feel like I was quite extroverted, whereas nowadays I mostly sit in my room.
He made no connection between the assault and his prospects of reoffending or even his desire to stay out of gaol. In the circumstances, even if the Tribunal did overlook the submission, it did not thereby fall into jurisdictional error.
93 The fourth matter is the contention that the applicant's methamphetamine addiction significantly contributed to his behaviour and he had ceased drug use since his incarceration in late January 2017 despite the availability of drugs in prison. It was submitted in his Statement of Facts, Issues and Contentions at [137] that the fact that the applicant has successfully abstained from drugs for over 23 months in prison should be given "significant weight" in the Tribunal's assessment of his risk of reoffending.
94 At [49] and [54] of its reasons, the Tribunal referred to the applicant's statements that "[m]eth was the main reason why [he] committed the burglary offence". At [53] it noted his explanation that he committed the aggravated burglary while "high" on methamphetamine.
95 At [71] the Tribunal referred to Mr Cicchini's evidence that the applicant had been making "a concerted effort during his time in prison to move away from drugs and drug users". At [77] the Tribunal referred to Mr Cicchini's evidence that the applicant's approach to rehabilitation "involved the making of personal decisions to not become involved with drug use or drug users whilst in prison in order to be better positioned to stay drug free in the future". At [85] the Tribunal referred to the applicant's assertion that he had not taken drugs while in prison and that he would not return to a life of methamphetamine abuse if he were released back into the community. It mentioned the applicant's assertion again at [96].
96 In these circumstances, there is no reason to conclude that the Tribunal failed to take the contention into account.
97 It follows that grounds 1 and 5 must be dismissed.