Grounds 1, 2 and 2A - Did the Tribunal misconstrue the Direction, fail to make requisite findings, or fail to have regard to a relevant consideration?
45 I propose to consider these three grounds together because, as I remarked earlier, each gives expression to the same basic grievance, which is that the Tribunal misconstrued or failed to have proper regard to the terms of the Direction.
46 Counsel for the Minister, Mr Johnson SC, submitted that the Court should infer from the Tribunal's reasons that it misconstrued or failed to have proper regard to paragraphs 5.2(2)(a) and/or 10.1(2)(a) and (b) of the Direction because it did not make findings on all the issues the paragraphs required it to address. In particular, he contended, the Tribunal concentrated on the magnitude of the risk of reoffending but did not identify the nature of any harm that Mr Obele may cause the Australian community if he were to reoffend. He argued that the effect of so doing was to disable the Tribunal from carrying out "the weighting exercise" required of it by the Direction by which I took him to mean the task of assessing the level of risk of harm to the community. He explained that the size of the risk was not necessarily proportionate to the harm that could ensue if it were to eventuate.
47 Paragraph 5.2(2) is expressed in mandatory language and requires a decision-maker, who is considering whether the discretion in s 501(2) of the Act should be exercised favourably or unfavourably to a visa-holder, to have regard to the potential harm, if any, the visa-holder may cause to the Australian community. This is an inquiry oriented to the future. The decision-maker is directed to reach a conclusion about this by considering both "the nature of any harm that the person concerned may cause" and "the risk of that harm occurring".
48 The opening words of paragraph 10.1(2) make it clear, in my view, that it is intended to give the decision-maker more determinate guidance in how she or he performs the task prescribed by paragraph 5.2(2). The paragraph provides that when performing the prescribed task of "assessing the level of risk of harm to the community" a person poses if she or he continues to be entitled to remain in the Australian community, the decision-maker's conclusion is, again, to be a function of two factors: "the seriousness and nature of the relevant conduct" and "the risk that the conduct may be repeated".
49 The precise relationship between the two paragraphs is unclear. Although one natural reading of the two together is that paragraph 10.1(2)(a) is intended to make paragraph 5.2(2)(a) more concrete, and, similarly, paragraph 10.1(2)(b) should be read with paragraph 5.2(2)(b), paragraph 10.1(2) deals in terms with assessing the "risk of harm to the community" which is the subject only of paragraph 5.2(2)(b).
50 The relationship was not fully explored in argument before me, although it was common ground that, in some sense, paragraph 5.2(2) was elaborated or made more determinate by paragraph 10.1(2) (and the following paragraphs which give further guidance in relation to the latter paragraph). This seems correct to me. Paragraph 10.1(2) presupposes as much, because it assumes that the decision-maker is required to consider the potential for harm to the community if the person continues to be entitled to reside within it, which is the subject given to her or him to consider by paragraph 5.2(2).
51 In oral submissions, Ms Baw, who appeared for Mr Obele pro bono, seemed to take the position that paragraph 5.2(2) was exhausted by paragraph 10.1(2), so that, in effect, the decision-maker need only apply paragraph 10.1(2) to the circumstances of the case in order to comply with the direction in paragraph 5.2(2).
52 Whether this proposition is correct is something that, in my view, should be left to an appropriate case in which to fully explore its implications. For the purposes of this case, it is sufficient to note that it is clear enough that the Tribunal was required by the Direction to have regard to the potential harm Mr Obele might cause to the Australian community in the future and that its assessment - a prediction, in effect - of this was to be a function of two matters: considering the risk of some harm occurring (that is, its probability) and the "nature" of that harm (in the words of 5.2(2)) or "the seriousness and nature of the relevant conduct" (in the words of 10.1(2)).
53 It was common ground that a failure to do this by the Tribunal would amount to jurisdictional error and this is undoubtedly correct. It would plainly be an error that caused the Tribunal's exercise of the discretion in s 501(2) to seriously miscarry since it is a fundamental feature of the Direction's requirements that the potential for harm to the community be assessed in the light of both the probability of the harm occurring and the nature of that harm. The two-fold nature of this deliberative process is emphasised in both paragraphs 5.2(2) and 10.1(2). Put in more canonical terms, a failure to appreciate this requirement of the Direction would amount to an error of law which caused the Tribunal to ask itself the wrong question so that its exercise or purported exercise of power was thereby affected. See Craig v South Australia (1995) 184 CLR 163 at 179.
54 Thus, the real issue between the parties was the proper inference to be drawn from the Tribunal's reasons as to whether it had performed the task prescribed for it by the Direction and, in particular, whether it had properly assessed the harm that Mr Obele may cause to the Australian community if he continues to reside within it by considering not only the probability of the harm occurring but the nature of any harm he may cause.
55 In my opinion, the Tribunal did perform its statutory task. In paragraph 12 of its decision it identified the protection of the Australian community as one of the two relevant primary considerations to which it was required to have regard. Then, under the heading "Protection of the Australian Community", the Tribunal stated:
Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
56 It proceeded to quote the precise terms of paragraph 10.1.1(2)(f) - which captures the nature of the conduct involved in this case - and of paragraph 10.1.1(3), which provides that the sentence imposed is considered indicative of the seriousness of the offender's conduct against the community. It noted the requirement in that paragraph to have regard to the number and nature of the offences, the period between them and the time elapsed since the most recent offence. It referred to the remarks of the sentencing judge where her Honour said that "the three counts in the indictment encompass a relatively short, but extremely grave episode of criminality". It also said in its own view the criminal conduct involved in the three offences was "very serious".
57 Mr Johnson argued, in effect, that the fact that the Tribunal discussed Mr Obele's past offences and noted their seriousness does not necessarily mean that it turned its mind to the harm he might cause in the future because (as he put it) "that says nothing about the nature of the harm he poses in the future". He said the Tribunal had to ask itself what would happen if the small risk of re-offending eventuated, what form it is likely to take and what harm may ensue to the community if it does. Ms Baw's response was that it was self-evident from the context in which the Tribunal referred to the seriousness of the offending conduct that it recognised the harm to the Australian community. Mr Johnson, however, submitted that:
[t]hese things are not-self-evident. The fact that somebody commits a particular type of offence, for instance, doesn't necessarily mean that their risk of re-offending is confined to that offence. You can have people who are convicted for a particular kind of conduct but who later pose a risk for some other reason.
58 Whilst there is force in Mr Johnson's submission, where, as here, the offender has no prior criminal record, the offences he has committed provide the best and perhaps the only real indicator of the harm he might cause in the future. The Tribunal adverted to cll 10(1) and 10.1.1. It referred to the relevant primary considerations under the rubric of the protection of the community. It expressly considered the seriousness and nature of the relevant conduct as well as the risk that the conduct may be repeated. It also referred repeatedly to the serious nature of the offences. In context it is implicit that it had in mind the harm to the community posed by such offences.
59 I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of re-offending in which sentencing judges routinely engage is based on the past. When the Direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it. The fact that an offender has been involved in drug trafficking in the past provides some evidence of the kind of harm in which he might engage in the future and I have no doubt that the Tribunal had this in mind. As for other harm he might occasion to the community, the Tribunal acknowledged that Mr Obele's motivation for criminal activity was financial gain and observed that "such a motivation could arise in future if he again finds himself in financial difficulties". Importantly, it did not limit its remarks to a motivation to commit this kind of offence. It is true that the Tribunal did not describe the harm drug trafficking causes the community. But it referred to the seriousness of the offences in the context of directing itself to paragraph 10.1(2)(a). I therefore accept that on a fair reading of the decision as a whole the Tribunal did not fall into jurisdictional error. It is well accepted that a court should not engage in over-zealous scrutiny of the reasons of an administrative tribunal to tease out some inadequacy in the expression so as to turn judicial review into a reconsideration of the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
60 Mr Johnson argued that the Tribunal's failure to expressly advert to the nature of the harm might suggest that it did not have regard to it. He relied on the remarks of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at [34]-[35]; [2001] HCA 30 on s 430 of the Act, which is in similar terms to s 43(2B) of the Administrative Appeals Tribunal Act and which requires the Tribunal to include in its written reasons its findings on material questions of fact. Her Honour said that a failure by the Refugee Review Tribunal to refer to, or make a finding about, a particular matter requires the inference to be drawn that it did not consider the matter to be material. At [69] McHugh, Gummow and Hayne JJ said that "[t]he provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material". In Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30, however, the Full Court held at [19]-[20] that a failure to make express findings about certain matters referred to in a sub-paragraph of the Migration Regulations 1994 (Cth) did not in the circumstances of that case demonstrate that the Tribunal did not have regard to them. The same is true, in my view, here.
61 Ms Baw submitted, in effect, that the real criticism of the Tribunal was that it did not make explicit what was implicit in its reasons and the Minister was merely inviting a merits review. I accept the submission. Whilst it would no doubt have been preferable for the Tribunal to expose its entire reasoning process with great clarity, its failure to do so does not involve jurisdictional error.
62 For these reasons I reject grounds 1, 2 and 2A of the application.