Risk to the Australian community
73 In this context, the applicant argued that the Tribunal erred in finding that he posed "an ongoing risk to the Australian community that is unacceptably high": [2011] AATA 928 at [23]. The applicant contended that the Tribunal's finding was inconsistent with: (1) the fact that he had been granted parole before the Tribunal hearing; (2) the documents forming part of his parole application; (3) his good conduct at Woodford and his efforts to rehabilitate himself and acquire workplace skills to secure employment upon his release; and (4) the comments of the Court of Appeal to the effect that he was unlikely to reoffend. The applicant also contended that the Tribunal's questions about whether he took responsibility for his offending were directed to a consideration that could not be taken into account under Direction 41.
74 As appears below, I doubt that these submissions constituted claims of jurisdictional error. Rather, they were an invitation to the Court to re-consider the merits of the Tribunal's decision, which the Court cannot do. I return to this fundamental difficulty at that end of this discussion.
75 In relation to the grant of parole, I note that the applicant referred at various times to the fact that the visa cancellation decision by the delegate was made before he had been granted parole. Nothing turns on this now, however, because, once the Tribunal re-exercised the s 501(2) discretion, the delegate's decision became irrelevant to the applicant's right to remain in Australia.
76 As the applicant noted, he was notified on 25 November 2011 that he had been granted parole, with effect from 2 December 2011, shortly prior to the Tribunal's hearing and ultimate decision. The applicant argued that the Tribunal ignored this fact, or gave it insufficient weight. He submitted that it was the function of the Parole Board to assess risk to the community and that it was incumbent on the Tribunal to refer to the Parole Board's decision and his parole application.
77 The applicant's submissions concerning the function of the Parole Board and the need for the Tribunal to consider its decision can be accepted. Broadly speaking, the Parole Board was, as the applicant submitted, bound to assess the risk to the community of a prisoner's release: see Corrective Services Act 2006 (Qld), ss 98(1), 99. There is, as the applicant noted, a degree of overlap between the matters to be considered under these provisions of the Queensland Act and those to be considered under Direction 41. There is, however, no reason to suppose that the Tribunal did not consider the assessment of the Parole Board other than in accordance with Direction 41.
78 As already noted, the Tribunal recognised that, by virtue of paragraph [10(1)(a)] of Direction 41, it was bound to consider, as a primary consideration, "the protection of the Australian community from serious criminal or other harmful conduct". In relation to this consideration, the Tribunal also had regard to the two main factors listed in paragraph [10.1(2)], which included the risk of re-offending. That is, at this high level, the Tribunal plainly had regard to the relevant considerations; and the applicant's submission that there was jurisdictional error in this aspect of the Tribunal's decision fails.
79 Even at a lower level, the applicant's submissions face difficulty. The Tribunal's reasons clearly indicate that it had regard to paragraph [10.1.2] of Direction 41, which guided the Tribunal's assessment of the risk of re-offending. This paragraph read as follows:
10.1.2 The risk that the conduct may be repeated
(1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be 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 from the courts, parole assessments, and similar sources of authoritative information or assessment; and
(e) evidence that the person has breached judicial orders, including parole, bail, bonds, suspected sentences and any other relevant undertakings or conditions imposed by the courts.
80 In accordance with Direction 41, the Tribunal took account of the parole assessment. The Tribunal referred to the fact that the applicant was "eligible for parole", noting that this "suggests a level of confidence that he can be released into the community": [2011] AATA 928 at [18]. As paragraph [10.1.2] indicates, the Tribunal was not bound by the Parole Board's assessment, as the applicant's argument assumed. It is evident from this paragraph that the assessments of parole authorities were to be treated as relevant to, though not determinative of, the Tribunal's (or primary decision-maker's) assessment of the risk of re-offending for the purpose of exercising the s 501(2) discretion: compare Oliver v Minister for Immigration and Citizenship [2011] FCA 534. Such assessments were in the nature of evidence that were generally to be given greater weight than evidence that was not from an independent and authoritative source. The reasons of the Tribunal (described at [15] above) are compatible with paragraph 10.1.2 of Direction 41.
81 It might be thought that the Tribunal's subsequent comment that "the parole authorities have not yet approved [his fiancée's] home as a suitable residence for the applicant if he obtains parole and remains in Australia" indicated factual error on the Tribunal's part, in that the Tribunal failed to appreciate that the Parole Board had already decided that the applicant should be released on parole. When the Tribunal's statements are considered in context, however, I am not persuaded that the Tribunal made such an error. Rather, the Tribunal was referring, perhaps inaccurately and obliquely, to the fact that the applicant had thus far not in fact been released into the community since he was detained in immigration detention immediately after his release from Woodford.
82 In any event, even if the Tribunal did mistake the fact, the error in fact-finding would not of itself amount to jurisdictional error: see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ); Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J); and Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ). Further, in this case, the error could not have affected the Tribunal's evaluation of the risk of re-offending, because the Tribunal nonetheless recognised the key matter, namely, that the Parole Board's decision indicated that it had some confidence about the applicant's release into the community.
83 It was clearly open to the Tribunal to take the view that the confidence of the Parole Board was not complete because, amongst other factors, the Parole Board had "not yet approved" the home of the applicant's fiancée as a suitable residence whilst he was on parole. Rather, the applicant was obliged to reside at his brother's house. I reject the applicant's submission that his parole conditions (which included reporting, supervision and residence requirements) were no more than those imposed on all law-abiding citizens.
84 Further, assuming that the contents of the applicant's parole application can be regarded as relevant, there is no reason to suppose that the Tribunal did not have regard to his application. A failure to have regard cannot be inferred from the Tribunal's lack of reference to the application because the Tribunal was not obliged to refer to every item of evidence in its reasons: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641; [2003] FCAFC 184 at [46]; Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309; [2010] FCAFC 51 at [28] (North and Lander JJ). Relevantly, paragraph [10.1.2] of Direction 41 required the Tribunal to give greater weight to evidence from independent and authoritative sources than other sources, with the consequence that the Parole Board assessment was entitled to greater weight than non-independent and non-authoritative evidence in the applicant's parole application papers. In this circumstance, the absence of any reference to the applicant's parole application in the Tribunal's reasons was unremarkable.
85 Further, there can be no doubt that the Tribunal considered the applicant's conduct in prison at Woodford. The Tribunal specifically referred to this matter in its reasons: see [2011] AATA 928 at [17].
86 The remaining matter raised by the applicant in relation to the risk of re-offending concerned judicial comments in the Court of Appeal. Paragraph [10.1.2(2)(b)] of Direction 41 provided that judicial comments were to receive "greater weight" than other, non-independent and non-authoritative material: see [79] above.
87 The applicant particularly relied on two paragraphs in the reasons for judgment of the Court of Appeal, which stated, amongst other things, that there were grounds for the view that the applicant would not re-offend on his release.
88 The applicant's submissions with respect to these paragraphs fail to establish error, let alone jurisdictional error. First, it is clear that the Tribunal had regard to the reasons of the Court of Appeal in making its decision, because elsewhere in its reasons (at [10] and [11]) the Tribunal referred to other parts of the Court of Appeal's reasons for judgment. Further, these particular passages must be read having regard to the entirety of the reasons for judgment of which they form part. In particular, as counsel for the Minister noted, the two paragraphs of the Court of Appeal's reasons that immediately follow the paragraphs on which the applicant relied must also be borne in mind. These two subsequent paragraphs indicate that the Court accepted that the applicant's offending conduct was premeditated and that the sentence was appropriate. Those matters were relevant to the seriousness and nature of the relevant conduct, which had also to be borne in mind in considering the overarching issue of the protection of the Australian community, of which the risk of re-offending was only part. In the circumstances, it cannot be inferred from the Tribunal's absence of reference to the particular paragraphs on which the applicant relied that the Tribunal overlooked them.
89 Secondly, as the terms of paragraph [10.1.2(2)(b)] of the Direction 41 made clear, the Tribunal was not bound by judicial comments. Rather, such comments, though entitled to greater weight than some other evidence, were necessarily to be considered in light of all the material before the Tribunal; and, as noted already, the Tribunal was not obliged to refer to every item of evidence in its reasons. In considering the risk of re-offending, moreover, it was clearly open to the Tribunal to consider the applicant's "total criminal history", question him about his attitude to previous offending behaviour and form an opinion about the significance of his answers. It was open to the Tribunal to regard the applicant's answers as evidence indicative of the limits of rehabilitation achieved and the prospect of further rehabilitation: see [10.1.2].
90 Ultimately, the applicant's submissions with respect to the risk of re-offending, including with respect to the Court of Appeal's comments, amounted to an attempt to challenge the weight given by the Tribunal to items of evidence relative to other evidence. The relative weight to be given an item of evidence is, subject to Direction 41, a matter for the Tribunal.
91 The Tribunal made its position clear at [23], where it held that the protection of the Australian community - a primary consideration under Direction 41 - weighed "reasonably heavily" against the applicant, in large part because of the seriousness and nature of his offending conduct. Unlike Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125, the Tribunal not only considered the factors militating against the applicant but also those militating in his favour. The Tribunal's conclusion on this matter was that whilst the applicant "may well become a law-abiding citizen … his offences are so serious that the public are entitled to expect the Minister will be cautious". It was plainly open to the Tribunal to take this view, having regard to the material before it.
92 Having regard to the entirety of the Tribunal's reasons, it cannot be concluded that the Tribunal did not have regard to a relevant factor that it was bound to take into account or that jurisdictional error otherwise arose in its treatment of "the risk to the Australian community" consideration. See Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 208 at [19]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 ("Khadgi") at 270 [58]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [46].