Nguyen v Minister for Home Affairs

Legal unreasonableness 18 The applicant submits that the Tribunal's Decision "…was reached in a legally unreasonable manner". That submission is advanced on seven bases, which it is convenient to replicate in full from the applicant's amended originating application (errors original): (a) The Second Respondent gave excessive weight to the general nature of an offence of trafficking a drug of dependence and inadequate weight to the Applicant's actual conduct; namely, the nature, extent and duration of his role the quantity of heroin he trafficked and his remorse, and rehabilitation efforts. (b) The Second Respondent assessed the nature and gravity of the applicant's conduct unreasonably by considering factors that aggravated the Applicant's conduct rather than giving proper consideration to the conduct itself. (c) The Second Respondent inferred that the Applicant knew what he was doing in committing the offence and betrayed the trust of the Australian people when such inferences were contrary to the evidence given in psychologist Mr Luke Armstrong's report relied on by the Applicant (Armstrong Report). (d) The Second Respondent placed excessive and adverse weight on the Applicant's intelligence, when a reasonable Tribunal would have placed favourable weight on that intelligence in terms of the Applicant's prospects for rehabilitation. (e) The Second Respondent being "extremely puzzled" by the fact that the Applicant committed his offence when he was not a gambler, nor under financial pressure, nor a drug user: (i) lacks intelligible justification in the context of the evidence as to why the Applicant committed the offence; and (ii) demonstrates an arbitrary conclusion as to the factors the Second Respondent considers would mitigate the gravity of the offence. (f) The Second Respondent failed to make findings on or give proper consideration to the Applicant's likelihood of continuing treatment or recommended risk minimisation measures once released from prison, despite reasoning at paragraph 90, that whether or not the Applicant would do so was a "critical factor in minimising the risk of reoffending." (g) The Second Respondent's finding that the Applicant's sentence to be "comparatively lengthy" lacked intelligible justification where: (i) the sentence was not compared to any other sentence or the maximum sentence for the offence; and (ii) no or insufficient weight was given to the mitigating factors that led the Court of Appeal to reduce the Applicant's sentence. 19 There is no material dispute between the parties on points of relevant principle. The Act reposed in the Tribunal a discretion as to whether or not the Cancellation ought to have been revoked. The exercise of that discretionary power was subject to an implied condition that it be reasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court observed (172 [65]): …the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary... That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise... Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 20 Respectfully, the first of the applicant's seven bases for alleging legal unreasonableness can be swiftly dismissed. The weight that the Tribunal gave to the evidence that it received was for it alone to determine: Abebe v The Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 ("SZJSS"), 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). It was not obliged to give particular weight to particular aspects of the evidence. I do not accept that it can fairly be said that the weight that it gave to any particular aspect was weight that fell outside the bounds of reasonableness. At its core, the applicant's submission is quintessentially an invitation to the court to review the Tribunal's Decision on its merits - a course against which no shortage of appellate authority counsels. 21 The second of the applicant's seven bases for alleging legal unreasonableness is in a similar vein. By his written submissions in opposition to the application, the Minister contended: …Again, this contention transgresses into an invitation to merits review. It was clearly open to the Tribunal to characterise the applicant's criminal offending as "serious" ([45]-[48]). That, indeed, was the view of the Court of Appeal in sentencing the applicant, even though it found the nature of his co-offenders['] crimes to be more "serious"... 22 With respect, that submission is plainly correct. The second of the applicant's seven bases for alleging legal unreasonableness cannot succeed. 23 The third basis upon which the applicant attributes legal unreasonableness to the Tribunal concerns its finding (or inference) that the applicant "knew what he was doing in committing the offence and betrayed the trust of the Australian people". It is said that the Tribunal could not reasonably have formed that view in light of the Armstrong Report. 24 In his written submissions in opposition to the present application, the Minister noted: This contention is misconceived. The Armstrong [R]eport does not say, and certainly did not compel the finding despite any other evidence, that the applicant did not "know what he was doing" let alone that he did not "betray the trust of the Australian people". Indeed, as the Tribunal pointed at…Mr Armstrong gave evidence that the applicant had a "well-developed sense of right and wrong"… Furthermore, indeed, a core element of the applicant's plea on sentence, and submissions to the Tribunal, was that he was remorseful for his conduct. Mr Armstrong's diagnosis of "Dependent Personality Disorder" was not incompatible with the Tribunal's findings or reasoning. 25 With respect, I accept those submissions. It cannot be said that, on the evidence with which it was confronted, the Tribunal was not reasonably able to form the view that the applicant attributes to it. To the extent that it did so, it did not do so in a way that bespoke legal unreasonableness. 26 The fourth basis upon which the applicant submits that the Tribunal's Decision was tainted by legal unreasonableness concerns the weight that the Tribunal placed upon the applicant's intelligence. It is said that the Tribunal placed excessive weight on the fact that the applicant is an intelligent and educated man, "…when a reasonable Tribunal would have placed favourable weight on that intelligence in terms of the [a]pplicant's prospects for rehabilitation". Inherent in that contention is a very clear invitation to the court to review the Tribunal's Decision on its merits. For reasons already adverted to, that invitation cannot be accepted. 27 The fifth basis upon which the applicant invokes the spectre of legal unreasonableness concerns the Tribunal's observation that his offending was "puzzling in the extreme" insofar as he was not a gambler, was not under financial pressure and was not a drug user. I confess some difficulty understanding this complaint. Whatever might be its outer reaches, it is plain enough that the Tribunal's observation was simply that the seriousness of the applicant's offending was not explained by circumstances that might commonly, in other cases, serve to explain offending of a similar nature. Whether that observation was especially helpful in the overall context of the Tribunal's Decision might be debated; but it cannot be impugned as legally unreasonable (in the sense that the authorities contemplate). 28 The sixth basis upon which the applicant attributes legal unreasonableness to the Tribunal concerns its failure to "…make findings on or give proper consideration to the [a]pplicant's likelihood of continuing treatment or recommended risk minimisation measures once released from prison, despite reasoning at paragraph 90, that whether or not the [a]pplicant would do so was a 'critical factor in minimising the risk of reoffending'". Again with respect, the boundaries of this contention are not as clear as might be preferable. Regardless, it invites a number of observations. First, the Tribunal was not obliged to evaluate in any particular way the risk of harm to the Australian community: BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82, 93 [43] (Collier, Murphy and Burley JJ). Second, the Tribunal was plainly alive to (and, indeed, acknowledged) the evidence that could logically have sustained a view that the applicant was at limited risk of reoffending. Third, there were other factors that inclined in the opposite direction, including the legitimate scope that the Tribunal had for doubting that the applicant would undertake medical treatment for his psychological condition outside of the "regimented regime of prison life". The Tribunal's ultimate conclusion (as to the risk that the applicant posed to the Australian community) was one that was open to it to make. Contrary to the applicant's submission, it cannot fairly be impugned as the product of legal unreasonableness. 29 The final basis upon which the applicant urges the court to find that the Tribunal's Decision is tainted by legal unreasonableness concerns its finding that the applicant's prison sentence was "comparatively lengthy". The applicant complains that the Tribunal's reference to his sentence being "comparatively lengthy" was lacking in intelligible justification (and therefore unreasonable in a legal sense) because there was no other sentence to which it was compared. Having regard to the maximum penalty available for his crime (life imprisonment), the prison sentence that was imposed upon him, he submits, was in fact not lengthy at all. With respect, that submission is contrived. Read fairly, the Tribunal's observation that the applicant's prison sentence was "comparatively lengthy" was nothing more than an observation that the sentence that was imposed was one that reflected the serious nature of his offending. I do not accept that it was intended to draw an actual comparison with a sentence or sentences imposed in other contexts. The applicant's charge of legal unreasonableness is not made out. 30 For those reasons, I do not accept that the Tribunal's Decision was legally unreasonable in any of the respects to which the applicant adverts. I therefore reject the first ground upon which he invites the court to set the Tribunal's Decision aside.

Failure to consider critical evidence 31 By his second ground of review, the applicant charges the Tribunal with having ignored evidence that he advanced in support of his Review Application. Principally, the evidence in question was that of Mr Armstrong (or, more particularly, specific aspects of his evidence). 32 It is convenient to set out the terms of the applicant's second ground in full: 2. The Second Respondent constructively failed to exercise its jurisdiction, denied the Applicant procedural fairness, or otherwise failed to carry out its statutory review task by ignoring critical and relevant evidence provided by the Applicant in support of a claim, and thereby fell into jurisdictional error. Particulars (a) The Applicant submitted that his offending was due to his relationship with his then girlfriend and co-offender, Uyen Thai (Thai). (b) The Applicant filed the Armstrong Report in support of his submission that he was of an acceptably low risk of his re-offending and to his mental health. (c) By the Armstrong Report Mr Armstrong gave evidence that: (i) the Applicant had a severe and chronic personality disorder known as Dependent Personality Disorder; (ii) the Dependant Personality Disorder was pre-existing and contributed in a major way to his arrest; (iii) the Applicant felt compelled to Thai and this compulsion clouded any pre-existing notion of the wrongfulness of the circumstances he found himself in; (iv) the offending resulted from the Applicant losing complete perspective in the context of a toxic, exploitative and groomed relationship; (v) access to the kind of psychological treatment necessary for his full rehabilitation from the Dependant Personality Disorder is unlikely to be available to him in Vietnam; (d) The Armstrong Report was critical evidence relied on by the Applicant. (e) The Second Respondent misunderstood the Applicant's submissions made in reliance on the Armstrong Report, as to the nature of his relationship with Thai. (f) The Applicant's Dependant Personality Disorder adversely affects his mental health. (g) The Second Respondent ignored or overlooked the factors described in paragraph 2(c) into account, or did not give them proper, conscious consideration in taking into account: (i) the cause of the Applicant's offending insofar as they related to the Applicant's risk; and (ii) the impediments the Applicant would face if returned to Vietnam. (h) The Second Respondent's failure to properly consider the Applicant's submissions and the Armstrong Report materially affected the Second Respondent's decision. 33 By his written submissions, the applicant observed that: …a Tribunal charged with a review fails to exercise its review jurisdiction if it does not engage in an active, intellectual process, or give proper, genuine and realistic consideration to a substantive, clearly articulated argument relying upon established facts. 34 Although I would express it differently, I accept the central thrust of that submission. There is no doubt that the Tribunal was obliged to consider the submissions that the applicant advanced in support of revocation of the Cancellation: Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-604 [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110, [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 ("Buadromo"), 332 [42] (Besanko, Barker and Bromwich JJ). Doing so required engagement in an active intellectual process directed at the representations that were advanced: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 ("CAR15"), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ). 35 A finding that a minister "…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); see also CAR15, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18 v Minister for Home Affairs (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 166, [15] (McKerracher, Kerr and Wigney JJ). In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an: …inference that the [decision maker - in that case, a 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. 36 In assessing whether or not a court should infer that a decision-maker failed to consider a submission or evidence advanced by an applicant, regard must be had to "…the facts of each particular case and the…reasons as a whole[, and t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error": Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [76] (Perram, Murphy and Lee JJ). 37 By his written submissions on this second ground of review, the applicant complains that the Tribunal: (1) "…failed to consider or give proper consideration to the [Armstrong Report], which was of central importance to the issues before the Tribunal"; (2) "…ignored the [a]pplicant's claim with respect to his 'severe and chronic' [dependent personality disorder]"; and (3) "…did not appreciate or properly consider" the applicant's claim that his offending was caused by his relationship and that, accordingly, he did not present an unacceptable risk of future harm to the Australian community. 38 The first two accusations can be addressed together. They focus upon the Tribunal's consideration of the Armstrong Report and its conclusion that the applicant suffers from dependent personality disorder. 39 Although the Tribunal's Decision refers to Mr Armstrong's evidence, there is no mention within it of his diagnosis of the applicant's dependent personality disorder. Nonetheless, it is clear that the Tribunal did consider Mr Armstrong's evidence, including the dependent personality disorder diagnosis that was central to it. By his written submissions, the Minister made the following observations (references omitted): [S]everal factors make it tolerably clear that the Tribunal did consider the evidence from Mr Armstrong, in respect of which that diagnosis was central to his analysis. 26.l. First, the Tribunal referred on many occasions to Mr Armstrong's evidence. 26.2. Secondly, in some respects, the Tribunal cited the precise language used by Mr Armstrong in his report, for example: (a) the applicant having a "well-developed sense of what is right and wrong"; and (b) the applicant not exhibiting any enduring personality features or "moral corrupted-ness". 26.3. Thirdly, the Tribunal clearly considered that Mr Armstrong had recommended a course of "treatment", which logically was for a condition. Albeit that the Tribunal did not then refer to the diagnosed condition by name, it is most unlikely to attribute to the Tribunal an ignorance of the condition the treatment for which it discussed in its reasons. 26.4. Fourthly, albeit that the Tribunal did not refer to the diagnosed condition by name, the Tribunal nevertheless made observations about the applicant's disposition that were consistent with the condition diagnosed. For example, the Tribunal aptly described the purpose of the treatment program recommended by Mr Armstrong as being "to minimise the potential for relapse, particularly where he may mix with more dominant personalities who could have the potential to exploit him". 40 I accept each of those observations. There is not a sufficient foundation upon which to infer that the Tribunal failed, as a matter of fact, to consider relevant aspects of Mr Armstrong's evidence. It is far more likely that the Tribunal simply didn't accept that his evidence disclosed "another reason" for which the Cancellation ought to be revoked. The applicant's invitation to infer that aspect of his evidence went unconsidered must be declined. 41 The third basis upon which the applicant advances this second ground of review focuses, again, upon the extent to which his offending was the product of his former relationship. The applicant submits that he was "probably groomed" by his former partner to commit the offence of which he was convicted: that he engaged in the offending conduct because he felt compelled to assist her and because his sense of right and wrong had been overborne by that compulsion. As he put it in his written submission, "The claim involved the diagnosis of [dependent personality disorder] being a major cause of his offending". It is suggested that the Tribunal did not understand that and, therefore, failed to consider that claim. 42 Insofar as the applicant's claim was set out in the evidence that Mr Armstrong gave, I do not accept, for the reasons already outlined, that the Tribunal misunderstood or otherwise failed to consider it. On the contrary, there is no sound basis upon which to infer that the Tribunal misunderstood or failed to consider any of Mr Armstrong's evidence. 43 Insofar as the claim might have been set out elsewhere, the court was not taken to any submission or any evidence (other than Mr Armstrong's) that was advanced before the Tribunal, in writing or orally, in which that claim was stated. The written submissions that the applicant placed before the Tribunal made no mention of his dependent personality disorder. The oral submissions that were advanced fell similarly silent on that front. 44 I do not accept that the Tribunal failed to consider anything that the applicant advanced before it. There is no reason to suspect anything other than that the Tribunal, on the strength of other evidence to which it was entitled to pay regard, considered that the applicant "…knew full well what he was getting himself into". That it inclined to that view in preference to the one that the applicant sought to impress upon it is not evidence that it failed to consider what was advanced. 45 The second ground of review upon which the applicant hopes to have the Tribunal's Decision set aside is not made good.

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Judgment (7 paragraphs)

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Cases Cited (15)

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