Issues on the application
33 In order to succeed, the applicant must show that the Tribunal committed a jurisdictional error.
34 It is convenient at this point for me to remind myself of some well-established principles. First, it is clear that a decision-maker commits a jurisdictional error if he or she asks the wrong question or fails to take into account a mandatory relevant consideration: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The applicant's submissions contained a premise that a failure to give genuine, proper and realistic consideration to the merits of a case is jurisdictional error. It may be debated whether that is a ground of jurisdictional error (Kioa v West (1985) 159 CLR 550 at 604 per Wilson J; Khan v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Gummow J, 11 December 1987); Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action, (4th ed, Lawbook Co, 2009) at 289). I do not need to enter into that debate because I am satisfied that, on any view, the Tribunal gave adequate consideration to the relevant matters.
35 Secondly, there is no error of law in simply making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J (as his Honour then was); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ. Thirdly, a decision-maker is not required to refer to every piece of evidence put before the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65]. The fact that a decision-maker does not do so is not of itself jurisdictional error, nor does it establish a failure to take into account a relevant consideration: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J (with whom Sheppard and Gummow JJ agreed). Finally, the reasons of the Tribunal are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
36 The grounds in the application are summarised above (at [6]). The particulars under grounds 2 and 3 were, for the most part, the same as the particulars under ground 1. The applicant refined his grounds in his written submissions. He identified two grounds, both of which related to the Tribunal's reasoning in connection with the first primary consideration. First, he submits that the Tribunal committed jurisdictional error because it did not give genuine, proper and realistic consideration to the merits of the case. Secondly, he submits that the Tribunal committed jurisdictional error because it wrongly conflated and "constructed" criteria in the Direction. In oral submissions, the applicant placed most emphasis on the second ground. However, he did not abandon the first ground, and I will deal with both grounds.
37 As to the first ground, in addressing the seriousness and nature of the conduct, the Tribunal considered each of the matters in paragraph 10.1.1 of the Direction. The applicant submits that the Tribunal erred in the way in which it addressed the matter identified in paragraph 10.1.1(3). The Tribunal said:
"24. Paragraph 10.1.1(3) refers to other factors to which due regard must be given. As to these factors, the sentence imposed was very significant, although the non-parole period fixed for Ms Pemberton was shorter than the periods fixed for her co-offenders. She had no offences before her conviction for murder, and has no conviction for any offence during the period of more than 11 years since then; in these respects, her antecedents are less serious than those of many citizens whose visas are cancelled on character grounds following a protracted history of repeat offending that has attracted significant custodial sentences."
38 The applicant submits that, having regard to the fact that the first respondent has been in prison, the Tribunal erred in placing any weight on the fact that the first respondent had no conviction for any offence during the period of more than 11 years since her conviction for murder. I do not think there is any substance in this challenge to the Tribunal's reasons. A person can commit offences while in prison. In any event, the matter was not one which was accorded any significant weight by the Tribunal.
39 The applicant submits that the Tribunal gave inadequate consideration to the risk that the first respondent would re-offend. The submission was that the Tribunal failed to have sufficient regard to the first respondent's use of illicit drugs and to certain personality traits of the first respondent. The risk of re-offending is a consideration by reason of paragraph 10.1.2 of the Direction. The Tribunal dealt with the matter in that context, although some of its findings are expressed in the context of its discussion of the matters in paragraph 10.1.1.
40 A summary of the Tribunal's findings and its approach is as follows:
(1) the first respondent had a history of drug abuse at the time of her offence. She had a drug and alcohol abuse disorder with probable drug dependency at times;
(2) at the time of the offence, the first respondent had a number of features suggestive of a borderline personality disorder. She did not have a psychiatric illness, but personality factors "of low self-esteem, passivity, and a willingness to go along" which contributed to her involvement in the murder;
(3) at the time of the hearing before the Tribunal, the applicant did not have a borderline personality disorder;
(4) at the time of the offence, all those involved were in a drug-induced state, and the first respondent blamed her cannabis use, in part at least, for her involvement in the offence;
(5) a conduct report by the Department of Correctional Services in relation to the first respondent included the following assessment:
"Ms Pemberton has displayed intelligence and reasons well.
She is polite and courteous to staff and has excellent personal standards. She has never portrayed aggression to either staff or other prisoners.
She maintains a good work ethic in the Textiles Unit of PRIME.
Ms Pemberton has several negative case notes recorded during her sentence, these would have been mainly personality issues and a need to retain an opinion about various issues.
She has had numerous urinalysis tests, several of which have been positive to THC and occasionally amphetamines.
When released, she has in the past, voiced that she might like to be involved in the travel industry. This might be looked at in the last 12 months of her sentence (December 2009), she is eligible for parole on December 2010."
(6) the first respondent has undertaken various educational courses while in prison;
(7) the first respondent has had episodes of depression while in prison, but she has no significant psychiatric illness and nor does she have a personality disorder;
(8) the first respondent is at significant risk of a relapse into major depression if she is deported;
(9) as to the first respondent's drug use, the Tribunal referred to the psychiatric evidence before it and then drew the following conclusions:
"36. The fact that Ms Pemberton has continued to use drugs in prison notwithstanding that she had completed drug rehabilitation courses was put in context by Dr Raeside. He said that the courses had been provided in the prison community, where drugs were readily available. He also said that the programs available in prison were somewhat limited compared with what was available in the general community, and he regarded it as significant that she had not used illicit drugs for the last couple of years. At the same time, he acknowledged that she would be at some risk in the community on her release because of ongoing stresses that she would encounter, but thought that she would be more at risk if she were to go to New Zealand, because of the lack of support there. He thought that people addicted to drugs are at risk of committing less serious offences in order to procure illicit drugs, such as stealing or dishonesty and possibly engaging in violent conduct, although he agreed that Ms Pemberton was not a violent person.
37. Ms Pemberton admitted her use of illicit drugs in the prison system. It is apparent from her evidence that she was depressed at times, felt tormented as a result of realising the enormity of her offence, and had been beaten and ostracised by other prisoners because they had been told that she was a 'grass'. She said that she obtained some relief from these difficulties by using drugs, and that this tended to happen during winter when she felt more depressed, and in December, at about the anniversary of her offending. This evidence is consistent with the records of the results of urine analyses, which on some occasions have been positive.
38. … I am satisfied that she realises the destructive effect that using drugs has had on her life, her family, the victim and the victim's family, and that she realises the importance of living a drug-free life on her release."
41 Having considered these and other relevant matters, the Tribunal expressed its conclusions as to the risk that the first respondent would re-offend. The Tribunal found that the first respondent had made significant progress in her endeavours to achieve rehabilitation and was determined to lead a meaningful and worthwhile life. There were good prospects of her overcoming her drug problem. Her prospects of being involved in an offence involving violence were very low, and of being involved in any kind of re-offending were low. The Tribunal's conclusions with respect to the matters in paragraph 10.1 of the Direction are set out above (at [27]).
42 As to the first respondent's drug use, the applicant submits that the Tribunal engaged in "a cursory and unrealistic analysis of the evidence relating to the first respondent's entrenched drug habit when it impinges in a real way on her conduct after release".
43 The applicant identified various matters which were referred to by the Tribunal and suggested the Tribunal had not taken them into account or had given them insufficient weight. The short answer to the applicant's submission is that the Tribunal did take them into account, and the precise weight to be accorded to them is not an issue which, of itself, raises a matter of jurisdictional error.
44 The applicant's other complaint seemed to be that the Tribunal failed to take into account items of evidence relevant to the first respondent's drug habit. The items of evidence identified by the applicant are as follows. First, the first respondent gave details of her drug use in prison between 1999 and December 2007. The applicant submits that the Tribunal erred in not mentioning these details. The Tribunal is not required to mention in detail all the evidence given before it. It considered the first respondent's drug use and, in particular, her drug use in prison. Secondly, the first respondent gave evidence that, on leaving prison, she intended to establish contact with a former inmate who she had used drugs with and who was in prison for armed robbery. Again, the Tribunal was not required to mention every item of evidence given before it.
45 The Tribunal clearly considered the first respondent's prospects of overcoming her drug problem. It found that there were good prospects of the first respondent overcoming her drug problem. I have considered the evidence. A more pessimistic, or perhaps guarded view was certainly open on the evidence. However, the fact that another view was open on the evidence does not establish error, let alone jurisdictional error, on the part of the Tribunal.
46 As to the first respondent's personality traits, the matters identified by the applicant were matters referred to by the Tribunal. Again, the short answer to the applicant's submission is that the Tribunal did take these matters into account, and the precise weight to be accorded to them is not an issue which, of itself, raises a matter of jurisdictional error.
47 The applicant's second ground is the one he placed most weight on in the course of his oral submissions. The background to the submission is as follows. As I have said, Dr Raeside prepared a report dated 13 August 1997 for use in the sentencing of the first respondent. He prepared a second report dated 31 July 2009 for the purpose of the application before the Tribunal. In the course of considering the risk that the first respondent would re-offend, the Tribunal referred in detail to the opinions expressed by Dr Raeside in his second report. In his second report, Dr Raeside expressed certain views about the first respondent's attitude to the possibility of being deported to New Zealand, the effect of deportation on the first respondent and her family and the risk that she would re-offend if deported to New Zealand as compared with the risk that she would re-offend if she remained in Australia. Those matters were referred to by the Tribunal in the section of its reasons dealing with the risk that the first respondent would re-offend. They are not relevant to that question. In other words, the first respondent's attitude to deportation and the effect on her of deportation are not relevant to the first primary consideration. Nor is it directly relevant to an assessment of the risk of the first respondent re-offending to compare the risk of re-offending if she was returned to New Zealand and the risk of re-offending if she remained in Australia. The applicant submits that the Tribunal took these matters into account and that that was a jurisdictional error. The applicant submits that, even if they were relevant matters in terms of the exercise of the discretion, they were not relevant as part of a primary consideration and in dealing with those matters in the context of a primary consideration, the Tribunal erred.
48 I do not think that the Tribunal erred in the manner suggested by the applicant. It is true that the matters I have identified were mentioned in the context of the first primary consideration and, in particular, the matters in paragraph 10.1.2. However, there were matters in Dr Raeside's second report which were relevant to the matters in paragraph 10.1.2 and I think that the Tribunal did no more than take the opportunity at that point in its reasons to summarise Dr Raeside's report more generally. I think the fact that the Tribunal had its mind on the relevant issues and only the relevant issues for the purpose of paragraph 10.1.2 of the Direction is put beyond any real doubt when regard is had to the contents of paragraph 44 of the Tribunal's reasons (see [27] above).
49 In my opinion, both challenges to the Tribunal's reasons fail.
50 There was a suggestion by the applicant that the Tribunal had erred because it had not expressed a conclusion as to whether the first primary consideration was in the first respondent's favour, or against her, or neutral. It is not clear whether that argument is still pursued. In any event, it must fail because the Tribunal's conclusions with respect to the first primary consideration are clear (see [27] and [32] above) and it is not required to use any particular form of words in expressing its conclusions.