Mundele v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The ground of appeal 9 The appellant was unrepresented in the Tribunal and before the primary Judge. He did, however, have legal representation on the appeal. 10 At the commencement of the hearing, the appellant was granted leave to amend the Notice of Appeal. The Amended Notice of Appeal (under the title "Substituted Notice of Appeal") raises a single ground. That is that the primary Judge should have found that the Tribunal had failed to engage meaningfully with "the appellant's claim of his exemplary behaviour while in prison in the assessment of whether he [is] likely to offend when released and Primary Consideration A" and had thereby failed, constructively, to exercise jurisdiction in the sense discussed in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. 11 The "Primary Consideration A" to which the appellant's ground of appeal refers is the "Protection of the Australian community from criminal or other serious conduct" for which Direction No. 79 issued by the Minister under s 499 of the Act on 20 December 2018 provides. Clause 13.1 in Pt C specifies this as one of the three primary considerations to which decision-makers considering revocation of a mandatory cancellation of a visa under s 501CA must have regard. 12 Clause 13.1(2) provides: Decision-makers should also give consideration to: (a) The nature and seriousness of the non-citizen's conduct to date; and (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 13 Clause 13.1.2 provides: 13.1.2 The risk of the Australian Community should the non-citizen commit further offences or engage in other serious conduct (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).

The proceedings at first instance 14 A ground to the effect of that in the Amended Notice of Appeal had not been included in the appellant's application for judicial review considered by the primary Judge. That application had contained a single unparticularised ground, namely, "procedural unfairness". The Judge rejected that ground saying: [4] It is apparent from the Tribunal's decision that the applicant filed various documents on which he relied, attended the hearing and gave oral evidence to the hearing. It is not possible to discern from the available material that the Tribunal denied the applicant procedural fairness. 15 However, the Judge went on to consider two matters which the appellant had raised in his submissions. 16 The first was a complaint that, because the appellant had not had legal representation before the Tribunal, the hearing had been unfair and he deserved a second chance. The Judge rejected this ground, noting at [5] that neither the Tribunal nor the Court in exercising its civil jurisdiction is bound to ensure that a party has legal representation: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [22]-[24]. Insofar as the submission had asserted that the appellant should be given a "second chance", the Judge considered that this was an inappropriate invitation for the Court to engage in merits review, at [5]. 17 The second matter was, in substance, the same as that on which the appellant now relies. 18 It is convenient to address the Judge's reasons in respect of this submission when considering the submissions made on the appellant's behalf on the appeal.

The documents relied upon 19 Both the ground in the Amended Notice of Appeal and counsel's submissions focussed on a report of the NSW Department of Corrective Services issued on 28 August 2018 (the Report). The appellant contends that the Judge should have found that the failure of the Tribunal to deal specifically with the Report, and the general issue of his behaviour while in prison, was a constructive failure to exercise jurisdiction. 20 The Report is a two page computer generated document with the heading: NSW Dept of Corrective Services Conviction, sentences and appeals 21 In addition to containing the personal details of the appellant, the Report records details of the sentences imposed on the appellant on 20 July 2018, identifies the offences for which he was sentenced, contains a section headed "Historical Convictions, Sentences and Appeals Details" (for which there were no entries because the appellant had no criminal antecedents), details of the custodial institutions in which the appellant had been held and indicated his anticipated date of release from prison. The custodial institution details revealed that the appellant had been taken into custody on 6 July 2017, had been held in the Parklea Correctional Centre between 11 July 2017 and 18 September 2017, then in the Cessnock Correctional Centre between 18 September 2017 and 14 June 2018, and then in the Parklea Correctional Centre until 28 August 2018 (being the date of the Report). 22 The appellant's counsel made the following submissions with reference to the Report: it is "one of the most important source documents in a case of visa cancellation on character grounds [when] the applicant has been incarcerated"; it was so important that the first respondent had obtained a copy of it from the Department of Corrective Services in New South Wales on 28 August 2018; it disclosed that the appellant had had no penalties, drug offences or other infractions of prison rules. The Tribunal should have recognised that this was so; "movement details in the Report are important because they can indicate if a person is engaged in, or suspected of, gang-related activities or other disruptive activities". This was so, the submission ran, because inmates are often moved from one prison to another so as to break up the formation of gangs and to remove those who cause disturbances; the Tribunal member should have appreciated that the movement record of the appellant was not the profile of someone engaged in gang-related activities, prison disturbance or rules infractions; the Tribunal had not only failed to ask the appellant about this aspect of the matter, it had not even referred to the Report in its reasons; the appellant's "exemplary prison record" to be inferred from the Report may, had it been specifically considered in the decision, have led to a finding that the appellant's risk of reoffending was less than the Tribunal had supposed (the Tribunal described that risk as being at "the low end of the scale"); and the Tribunal's failure to consider the Report was a material error because it was capable of constituting "recent cogent evidence of [the appellant's] rehabilitation". 23 In addition to the Report, counsel referred to other material before the Tribunal to which it had not referred specifically in the reasons: (a) the statement in the appellant's handwritten submission attached to his request for revocation of the visa cancellation lodged on 2 October 2018: My prison report shows that I'm not your average criminal. All I do is attend the chapel and train to keep my mind sane. It was common ground that the "prison report" to which the appellant referred in this passage is the Report identified earlier in these reasons; (b) a passage in the submission made by his solicitors to the delegate on 27 December 2018: Mr Mundele has no antecedents in New Zealand and Australia and [has] been compliant with authorities before and since. He did not engage in any violent behaviour and or sexual offences and has otherwise been a model prisoner at NSW Correctional Services prisons. (c) a passage in the submissions of the solicitors to the delegate on 12 April 2019: The anticipated NSW Corrective [S]ervices [R]eport has not been able to be sourced in time though we understand the applicant has been compliant with NSW prison officers' directives to be granted parole, and has continued to demonstrate his compliance and conformity at the Villawood Immigration Detention Centre since parole from NSW prisons on or about 04/01/2019. Counsel acknowledged that the report referred to in this passage was a pre-release report and had not been provided to the delegate or to the Tribunal.

The reasons of the primary Judge 24 At first instance, the appellant had contended that the submissions that he was "not your average criminal" and had been a "model prisoner" were clearly articulated representations to the Tribunal which it had failed to address. 25 The primary Judge rejected that contention, noting at [8] that: (a) the Tribunal had identified at [8] all of the documentary material before it, which included the material upon which the appellant now relies; (b) the Tribunal had said at [9] that it had reviewed all of the material and would refer to all relevant materials in its reasons for decision; (c) the Tribunal had referred at [51] to various courses which the appellant had undertaken and to his hope to use the skills he had thereby obtained to keep himself busy and "stay out of bad company" when released. The Judge was mistaken in thinking that the Tribunal had found that these courses had been undertaken while the appellant was in prison as he had in fact undertaken them while in immigration detention. It was not suggested, however, that this mistake was material; and (d) the Tribunal had said at [79] that, in considering the likelihood that the appellant may engage in further criminal or other serious conduct, it had had regard to the representations he had made in support of his request for revocation of the mandatory visa cancellation and his evidence to the Tribunal. The Tribunal had given a footnoted reference in this paragraph to pp 60-76 of the G Documents. Those pages included the appellant's submissions in support of the application for revocation (but not either of the solicitors' submissions). 26 The primary Judge also noted the Tribunal's reasoning in [78]: Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2(1)(a), the Tribunal finds that any future re-offending of a similar nature by the Applicant may involve fraudulent activity resulting in financial loss to members of the Australia community. The Applicant's criminal activity involved a very large sum of money fraudulently obtained and the use of false identity documents. While no person was physically harmed as a result of the Applicant's offence, a large amount of money remained unaccounted for, which was presumably absorbed by the affected financial institutions, thereby impacting their shareholders and customers. 27 The Judge then concluded at [9]: It will be apparent from this that the Tribunal in fact considered the matters which the applicant contended it failed to consider including that he was a "model prisoner" and was not "your average criminal". The Tribunal, it must be inferred, considered the applicant's exemplary behaviour in prison in its weighing of all the material relevant to Primary Consideration A. It cannot be said, accordingly, that the Tribunal failed to consider a clearly articulated argument of the applicant as the Tribunal expressly referred to it having taken the material in which that argument was made into account.

Relevant principles 28 Counsel for the appellant accepted that the Tribunal was not required to refer to, and make findings on, every piece of evidence or every claim: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. He submitted, however, that the Tribunal was required to identify the evidence and make findings on claims which are significant and would be an essential reason for the decision. 29 A number of authorities have now considered the obligations of the Tribunal when conducting a review under s 500 of the Act of a decision not to revoke the cancellation of a visa. Some of the authorities have concerned other forms of statutory review but their reasoning is apposite to s 500 reviews. 30 In Applicant WAEE, the Full Court (French, Sackville and Hely JJ) said, at [44]: It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself … 31 The obligation on the Tribunal to carry out a review of this kind requires it to make a finding on any "substantial, clearly articulated argument relying upon established facts", and a failure to do so can amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26, (2003) 77 ALJR 1088 at [24]; NABE at [55]. 32 The circumstances in which the Court may infer that a Tribunal has failed to consider an issue or particular evidence have also been considered in a number of authorities. In Applicant WAEE, the Full Court said, at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 33 The appellant's counsel referred to DBO17 v Minister for Immigration and Border Protection [2020] FCA 1118, in which Kerr J held at [84], that the absence of any reference to a UNHCR Report by the Immigration Assessment Authority (IAA), in what were "otherwise comprehensive and fully footnoted reasons", indicated that the report had not been considered; to BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, (2019) 269 FCR 94 in which Rares, Perry and Charlesworth JJ held, at [55], that the IAA's failure to refer to news reports, while referring to other new material provided by the applicant, warranted an inference that it had not considered those reports; and to Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, (2018) 263 FCR 531 in which Colvin J held at [68], that the reviewer should have regard to those "matters … made manifest as significant matters by the manner in which they are expressed". Ultimately, as was noted by Griffiths J in EGH19 v Minister for Home Affairs [2020] FCA 692 at [51(c)], whether a claim has been squarely raised or articulated so as to require consideration will depend upon the facts and circumstances of the individual case.

Consideration 34 It is commonly the case that the only post-offence conduct to which persons in the appellant's circumstances may refer in order to demonstrate remorse, rehabilitation and a determination to be law abiding will be their conduct while in prison and in subsequent detention. Usually, they will not have been free in the community so their conduct in that context cannot be assessed. It is accordingly understandable that the appellant drew the attention of the delegate and of the Tribunal to his conduct while in prison. 35 It is true that the Tribunal did not refer expressly to the appellant's statement that "my prison report shows that I am not your average criminal" or make findings as to what it was precisely that that statement conveyed. Nor did the Tribunal refer expressly to the solicitors' submissions that the appellant had been a "model prisoner" and compliant with prison officers' directives. 36 However, we do not regard these omissions as being indicative of a constructive failure by the Tribunal to exercise jurisdiction. 37 In the first place, these submissions were part of the appellant's broader submission that he had reformed and rehabilitated himself so that the Tribunal could be satisfied that he was resolute in his determination not to offend again and accept that there was no prospect of him being a risk to the Australian community. The Tribunal addressed that submission squarely and directly, commencing at [48]-[54] in which it noted: (a) the appellant's acceptance of responsibility for his own conduct; (b) the appellant's recognition that he had "brought shame on my family, my church and my Congolese community"; (c) the appellant's statement in his Personal Circumstances Form: There's no way I want to reoffend. I can guarantee I won't reoffend after what I've gone through in jail and the consequences you face with immigration is a big wake up call. I have my family here so I don't want to be separated from them again. (d) the skills courses which the appellant had undertaken and his determination to "stay out of bad company" when he is released; (e) his plan to work with African youth and to be an influence for the good; (f) his determination to show his parents that he is "a changed man" and to "make them proud by being a hard worker and role model to the young ones"; and (g) his evidence that he has "now undertaken a Bible Study course and wants 'to do God's work' and go out and preach and make a difference, particularly by helping young men" (emphasis in the original). 38 The Tribunal also referred to the pre-sentence report of a clinical psychologist prepared in June 2018 (after the appellant had been in custody for one year) in which the opinion was expressed that the appellant "would be very unlikely to reoffend if he maintains his current motivation and resilience and continues with his business plans or gains employment". 39 In [71]-[83], the Tribunal addressed the nature and seriousness of the appellant's conduct "to date". The Tribunal commenced that consideration by noting that the appellant had committed "only two offences" in Australia, that these had arisen from "the one criminal enterprise" and that he had no criminal record in New Zealand. It then addressed matters relating to the appellant's offending in July 2017. In [79], the Tribunal identified material to which it had had regard in assessing the likelihood that the appellant may engage in further criminal or other serious conduct. We will return to that part of the Tribunal's reasons shortly. 40 The Tribunal then recorded: [80] The Tribunal has had regard to the Applicant's limited criminal history, which includes two offences in Australia and no criminal record in New Zealand. The Tribunal has also noted that in his sentencing remarks Judge Norrish QC stated that he did not believe that the community needed to be 'protected' from the Applicant because he was unlikely to be a continuing risk to others. He accepted that the Applicant would be 'unlikely to reoffend' and his prospects of rehabilitation were 'good'. The Judge further accepted that the Applicant had expressed his remorse and accepted responsibility for his criminal behaviour. In her report Ms Pal also expressed the view that the Applicant 'would be very unlikely to reoffend if he maintains his current motivation and resilience'. The Applicant's evidence to the Tribunal is that he recognises that his offences were serious and the time he has spent in gaol and immigration detention has allowed him to fully recognise the consequences of his actions. He has undertaken courses to improve his skills and to allow him to keep himself busy when he is released and to 'stay out of bad company'. [81] On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low end of the scale. (Emphasis in the original) 41 As is apparent, the Tribunal accepted the appellant's evidence and submissions about his reform and rehabilitation. It accepted, at [81], that "the risk of the applicant engaging in further criminal conduct is at the low end of the scale" and said later at [131] that there was a "low risk" of the appellant re-offending. 42 The Tribunal concluded at [131]: In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The seriousness of the offences for which the Applicant was convicted and the low risk of the Applicant reoffending in a manner that would cause harm to the Australian community are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision. 43 The second matter indicating that there was no constructive failure by the Tribunal to exercise its jurisdiction is the statement in [79]: In considering the likelihood that the Applicant will engage in further criminal or other serious conduct as required by paragraph 13.1.2(1)(b), the Tribunal has had regard to the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and his evidence to the Tribunal. 44 The Tribunal gave a footnote reference to the representations to which it referred in this paragraph. Those representations comprised the statements in the appellant's Request for Revocation of the Mandatory Visa Cancellation made on 2 October 2018 and in the accompanying Personal Circumstances Form. There is no reason to doubt the Tribunal's statement that it had had regard to this material especially, as counsel for the respondent pointed out, the Tribunal had in an earlier part of the reasons quoted an extract from the Personal Circumstances Form (set out earlier in these reasons at [37(c)]). 45 Thirdly, as was noted by the Full Court in Applicant WAEE, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written submissions. The distinction noted by the Full Court in Applicant WAEE at [46] between a failure to advert to evidence bearing on a contention, on the one hand, and a failure to address the contention itself, on the other, is apposite in the present case. As already noted, the particular evidence which the appellant makes the subject of his ground of appeal to this Court was but one aspect of his broader claim to the Tribunal that it could be confident that he had reformed. That contention was addressed by the Tribunal in some detail. 46 Fourthly, in our view, the appellant's submissions sought to attach greater significance to the Report than it warranted. By its nature, it contained only factual data concerning the circumstances of the appellant's detention in custody. It did not purport to contain any material of an evaluative kind. Counsel for the appellant sought, in effect, to have inferences drawn from what the Report did not contain, rather than from that which it did. In our view, the basis for the drawing of the inferences to which counsel referred is limited. For example, the mere recitation of the custodial institutions in which the appellant was held while in prison (and the implicit statements concerning his relocation from one prison to another) says very little about his conduct while in prison. That is because decisions as to the placement of prisoners in particular custodial institutions are commonly informed by considerations which are independent of a particular prisoner's conduct, including prison capacity, avoidance of overcrowding, the proximity and location of the prisoner's court appearances, the nature of the offending, their age and other factors. There was accordingly no reasonable basis upon which the Tribunal could, in the absence of other evidence, have inferred from the information as to the prisons in which the appellant had been located that the Report indicated that the appellant had not become involved in gang related activities or prison disturbances. 47 There is a ready explanation for the Department having sought the Report, namely, to have written confirmation that the appellant was in prison so as to be satisfied of the existence of the second condition specified in s 501(3A) for the mandatory cancellation of the visa. 48 Moreover, the Report does not on its face appear to contain information as to the appellant's rehabilitation, so as to have made it natural for the Tribunal to have referred to it for that purpose. Counsel's submissions seemed to assume the possession by the Tribunal of some form of esoteric knowledge about Corrective Services Reports, but there is no basis on which the Court may infer that the Tribunal had such knowledge. 49 Fifthly, this was a matter in which the appellant gave evidence before the Tribunal. It is very evident that the Tribunal member gave close attention to his evidence (as the reasons contain multiple footnoted references to that evidence). This means that this was not a case in which the primary Judge should have felt some disquiet about the reality of the Tribunal's discharge of its review function. 50 Finally, we note that the appellant's good behaviour while in prison had not been in contest before the Tribunal. As counsel for the respondent submitted, this makes it readily understandable that the Tribunal did not think it necessary to mention specifically the evidence on this topic.

Conclusion 51 For these reasons, we are not satisfied that the appellant's ground of appeal is made out. On the contrary, we consider that the decision of the primary Judge was correct. The appeal must therefore be dismissed. 52 The Court did not hear submissions from the parties as to the appropriate order for costs depending upon the fate of the appeal. Accordingly, we will order that, in the absence of any submission to the contrary being filed and served within seven days from the date of the judgment, the appellant is to pay the Minister's costs to be taxed in default of agreement. If such a submission is filed, the Court will determine the issue of costs on the basis of that submission and any responsive submission. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Middleton, Farrell and White.