Minister for Immigration and Citizenship v Pemberton

The Tribunal's reasons 7 The Tribunal said that the background facts were not in dispute and what follows is a summary of the Tribunal's findings as to the background facts. 8 The first respondent was born in New Zealand in 1979. She came to Australia with her parents in 1982 when she was almost three years of age. She lived in Queensland with her family until she was six years of age. The family then moved to South Australia. Initially, the family returned to New Zealand for comparatively short periods. However, the first respondent has not been to New Zealand since she was eight years of age. 9 The first respondent attended two primary schools in Adelaide, and then two private secondary colleges. She did not fit in with the other children at the first college, and she attended the second private secondary college in years 9 and 10. She found that college easier. 10 The first respondent had a difficult relationship with her parents and siblings. Her parents took her to see psychologists because they were worried about her behaviour. She was eventually diagnosed as suffering from Attention Deficit Hyperactivity Disorder for which she was prescribed Ritalin and Dexamphetamine. 11 In 1995, the first respondent was found at school with cannabis and she was expelled. That was soon after her sixteenth birthday. The first respondent then ran away from home and, after spending two nights living on the street, she commenced living with various friends who were much older than her. Her parents reported her missing, but she did not want anything to do with her parents. 12 The first respondent was interested in joining the armed forces but she did not do so because she was not an Australian citizen. She received benefits from Centrelink. In early 1996, the first respondent became very depressed and was prescribed medication for depression. The first respondent then tried to harm herself and later she tried to commit suicide. On one occasion, the first respondent was admitted to the Queen Elizabeth Hospital, and then transferred to the Psychiatric Unit of the Women's and Children's Hospital. 13 The first respondent was able to obtain illicit drugs from those persons with whom she associated and she began abusing illicit drugs. Late in 1996, she met a number of young people and moved into a house at Queenstown. One of these people was a drug dealer, and the others were all drug users.

14 In 1998, the first respondent was convicted of the offence of murder. The murder was committed in 1996. The Tribunal described the circumstances of the murder in the following terms:

"10. In addition to Ms Pemberton, two young men, aged 20 and 18 at the time of the offence, a male youth then aged 17 and a young woman then aged 18 were convicted of murder as a result of engaging in a joint enterprise. A sixth person, a girl aged 15 at the time of the offence, was convicted of assault occasioning actual bodily harm. Ms Pemberton had only known her co-offenders for about two weeks. The circumstances of the crime were horrific. The victim, a young woman aged 18, was assaulted over an alleged debt of some $70. The sentencing judge provided details of the terrible treatment that was meted out to the victim, and said that the sustained series of assaults warranted the description of torture. Whilst the judge said that not all of the offenders took part in all of the activities he described, and were not all present throughout the entire time, all of the offenders were present for various periods at the house where the assaults were taking place and joined in the efforts to inflict the terrible experience on their victim. He said that a decision was then taken to murder the victim, and she was taken to a paddock where further savage and horrendous assaults occurred, resulting in her death." 15 The first respondent was arrested in late December 1996 and she has been in custody ever since. She will be eligible for parole in December 2010. 16 It is convenient at this point to summarise the key features of the Tribunal's decision by reference to the Direction. 17 The Direction identifies primary considerations and other considerations. Primary considerations must be taken into account by the decision-maker, although there may be circumstances where a primary consideration is not relevant (paragraph 9(1) and (2)). Other considerations are considerations which may be relevant, and, if they are, they must be considered (paragraph 11.1). Even where it is appropriate to take the other considerations into account, generally they are to be given less weight than that given to primary considerations (paragraph 11.2). 18 The four primary considerations are identified in paragraph 10. The first three are relevant in this case. They are as follows: "1. In deciding whether to refuse to grant a person a visa or to cancel a person's visa, the following (the primary considerations) are to be considered: (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;" 19 The Direction contains an elaboration of the matters which are relevant to the first primary consideration. Paragraph 10.1 provides: "10.1 Protection of the Australian community (1) Due consideration is to be given to the Government's objectives set out in Part 1, paragraph 5 of this Direction; (2) The factors relevant to assessing the level of risk of harm to the community of a person's entry or continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. Note: Both of these factors are discussed further below." 20 Paragraph 5.1 of the Direction sets out the objectives of the Act. It is in the following terms: "5.1 Objectives (1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. (2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. (3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled." 21 Paragraph 5.2 should also be noted. It provides: "5.2 General Guidance (1) To facilitate these objectives, this Direction provides direction to decision-makers with respect to performing functions and exercising powers under section 501 of the Act. The Direction is binding on all decision-makers. Note: Under section 499(2A) of the Act, persons and bodies must comply with a direction made under section 499. (2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider: (a) the nature of any harm that the person concerned may cause to the Australian community; and (b) the risk of that harm occurring. (3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations. (4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia. (5) Among other matters, therefore, this Direction provides direction on the relevant factors that must be considered in making a decision under section 501 of the Act. Note: See Part B of this Direction." 22 Paragraph 10.1 has two subparagraphs which reflect the matters in paragraph 10.1(2)(a) and (b). Paragraph 10.1.1 is entitled "The seriousness and nature of the conduct" and paragraph 10.1.2 is entitled "The risk that the conduct may be repeated". 23 Paragraph 10.1.1 has five subparagraphs. Paragraph 10.1.1(1) states that crimes of violence are of special concern. Paragraph 10.1.1(2) identifies examples of serious offences and conduct and they include murder. Paragraph 10.1.1(3) requires consideration to be given to the sentence for an offence and the extent of a person's criminal record. Paragraph 10.1.1(4) provides, relevantly: "(4) The following factors are also to be considered: (a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual's case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment; (b) any relevant factors the person provides as mitigating factors;" 24 Paragraph 10.1.1(5) deals with cases where a person is acquitted by reason of unsoundness of mind or insanity. 25 Paragraph 10.1.2 provides as follows: "10.1.2 The risk that the conduct may repeated (1) The person's previous general conduct and the total criminal history are to be considered highly relevant to assessing any risk of re-offending. (2) The following factors are to considered as particularly relevant to this assessment: (a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending; (b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments and similar sources of authoritative information or assessments; and (c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts." 26 The structure of the Tribunal's reasons is as follows. First, the Tribunal addressed the first primary consideration, namely, the protection of the Australian community. In that context, the Tribunal addressed the seriousness and nature of the conduct and the risk that the conduct may be repeated. The Tribunal referred to two reports prepared by Dr Craig Raeside, who is a consultant psychiatrist. Dr Raeside prepared a report dated 13 August 1997 for the purpose of the report being placed before the sentencing court. Dr Raeside prepared a second report dated 31 July 2009 for the purpose of the hearing before the Tribunal. Dr Raeside gave evidence before the Tribunal. 27 After considering the matters relevant to the first primary consideration, the Tribunal expressed the following conclusions: "44. In summary, therefore, of the two factors relevant to assessing the level of risk of harm to the community of Ms Pemberton's continued stay in Australia: (a) her offending conduct was most serious and abhorrent, but she has no other convictions, and there are some limited mitigating factors; and (b) there is a very low risk that the offending conduct may be repeated. Furthermore, applying the guidance provided by paragraph 5(5) of Direction No 41, this is a matter where it would be more appropriate for the Australian community to accept more risk because Ms Pemberton has spent her formative years, and a major portion of her life, in Australia." 28 The reference to paragraph 5(5) of the Direction is a mistake; it should be a reference to paragraph 5(4). 29 The Tribunal member then addressed the second primary consideration, namely, whether the applicant was a minor when she began living in Australia. For reasons which I do not need to set out, he concluded that the second primary consideration was to be assessed in the first respondent's favour. 30 The Tribunal member then addressed the third primary consideration, namely, the length of time that a person has been ordinarily resident in Australia. Again, for reasons which I do not need to set out, the Tribunal member concluded that the third primary consideration favoured the first respondent. 31 The Tribunal member then addressed the other considerations referred to in paragraph 11 of the Direction and, in particular, family and other relationships, the applicant's health, links to country of deportation, hardship to the applicant and her immediate family, and education considerations. The Tribunal member concluded that those factors under the heading in the Direction "Other considerations" which were relevant were in favour of the first respondent being able to remain in Australia. 32 The Tribunal member summarised his conclusions in the following passage: "62. Having regard to the circumstances to which I have referred above, I do not think that the Australia community would be subject to unacceptable risks of harm if Ms Pemberton remains in the Australian community. Further, I think that the second and third primary considerations, and those factors included in the other secondary considerations that are relevant to Ms Pemberton, are all in her favour, for the reasons to which I have referred above. I consider that she should be given the opportunity to rebuild her life in Australia, with the support of her family and the parole and other community facilities available in this country. There is force in the contention by Ms O'Connor, who very helpfully appeared pro bono for Ms Pemberton, that the analysis of Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 at [30]-[35] is applicable to the present matter, and that to deport Ms Pemberton would, in all the circumstances, be punitive in nature."

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.

Conclusion 51 The application must be dismissed. I will hear the parties as to costs and any other orders. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.