Pillay v Minister for Immigration, Citizenship and Multicultural Affairs

LEGISLATIVE FRAMEWORK

1. Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the person makes representations and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
2. Pursuant to s 499(2A) of the Act, a person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1). In the present case, Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Paragraph 5 is described as the preamble to the Direction and at 5.1(4), states that the purpose of the Direction is to guide decision makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501 or revoke a mandatory cancellation under s 501CA.
3. Paragraph 8 of Direction 99 sets out the primary considerations as follows:
4. Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
5. Whether the conduct engaged in constituted family violence (Primary Consideration 2);
6. The strength, nature and duration of ties to Australia (Primary Consideration 3);
7. The best interests of minor children in Australia (Primary Consideration 4); and
8. Expectations of the Australian community (Primary Consideration 5).
9. Paragraph 9 of the Direction 99 sets out four "other considerations" to be taken into account where relevant:
10. Legal consequences of the decision (Other Consideration 1);
11. Extent of impediments if removed (Other Consideration 2);
12. Impact on victims (Other Consideration 3); and
13. Impact on Australian business interests (Other Consideration 4).

TRIBUNAL'S DECISION

1. The hearing before the Tribunal took place on 6 and 7 March 2024. The Tribunal received oral evidence from the applicant and a number of the applicant's family members, partner, a friend and a clinical psychologist, Dr Jacqui Yoxall. The applicant was unrepresented before the Tribunal.
2. In assessing Primary Consideration 1, the Tribunal considered that the applicant had committed multiple violent offences against women: TD [17]. The Tribunal found that the applicant's offending has been frequent and very serious: TD [21] - [23], [28]. The Tribunal considered that the applicant had made concessions about the impact of his offending and found that the nature of harm to the Australian community, should the applicant commit further offences, would range from "psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm": TD [36] - [38].
3. As to the applicant's risk of reoffending, the Tribunal took into account the applicant's concessions that most, if not all, of his offending has occurred while under the influence of illicit substances: TD [39]. The Tribunal set out the various rehabilitative courses that the applicant had undertaken as well as noting that the applicant had commenced seeing a psychologist: TD [41] - [43]. The Tribunal considered the applicant's evidence that he would be able to sustain abstinence from illicit substance use in the community as he now has greater insight into his addiction and has a support system: TD [46].
4. In determining the applicant's risk of reoffending, the Tribunal considered the expert evidence before it, namely, the report from a forensic psychologist, Dr Gavan Palk, and the evidence of expert psychologist, Dr Jacqui Yoxall. The Tribunal considered that there were inconsistencies between the applicant's conduct as recorded in the material before the Tribunal and what the applicant had reported to Dr Yoxall: TD [49]. For example, the Tribunal considered that the applicant had denied certain details of the physical violence committed upon a domestic partner victim, which was inconsistent with the version of the incident as recorded by police: TD [49]. The Tribunal noted the applicant's explanation for the inconsistencies, namely that he gave Dr Yoxall the whole remittal bundle and relied upon her to look through the material, which the Tribunal characterised as being "a gamble on Dr Yoxall perhaps not turning up the relevant page(s) in the remittal bundle to expose the blatant inaccuracy of what the [a]pplicant was telling her": TD [50].
5. At [51], the Tribunal stated: In any event, it transpired during Dr Yoxall's evidence that she had not been provided with the transcript of the previous ventilation of this matter before this Tribunal and nor had she been provided with the critically important prosecution QP9 material. Both the previous transcript and the QP9 documents appear in the remittal bundle. The result is that an inference can now be drawn that the Applicant selectively provided material to Dr Yoxall such as to deprive her of fulsomely fact-checking or cross-referencing whatever answer he gave her to a given question against what should have appeared in the remittal bundle before her. This does the Applicant's credit no favours.
6. The Tribunal accepted, with some caution, Dr Yoxall's overall finding that the applicant was at a low risk of reoffending subject to the applicant maintaining abstinence from heroin use: TD [55], [72]. That notwithstanding, the Tribunal ultimately found that the applicant's risk of recidivism is no different from that which it was at the time of his most recent removal from the community: TD [72]. In reaching that conclusion, the Tribunal considered, amongst other things, that the applicant continued to offend after being given a stern warning from the Minister's Department on 14 February 2020: TD [72]. That warning will be considered in some detail under consideration of ground four below.
7. The Tribunal found that Primary Consideration 1 confers a very heavy weight in favour of the Tribunal affirming the Non-Revocation Decision: TD [75].
8. Further, the Tribunal found that the applicant's family violence, perpetrated against Ms A.N.A, a former partner of the applicant, and Ms RP, the applicant's ex-wife, is very serious and Primary Consideration 2 confers a very heavy weight in favour of the Tribunal affirming the Non-Revocation Decision: TD [77] - [98].
9. As to the strength, nature and duration of the applicant's ties to Australia, the Tribunal first identified the persons to whom the applicant has ties in Australia: TD [102]. The Tribunal considered the evidence of the applicant's immediate family members who are citizens, permanent residents or people who have a right to remain in Australia indefinitely, including the applicant's partner, mother, and sister: TD [103] - [104]. On the basis that the applicant's brother, Mr Damien Pillay, had his visa cancelled and currently resides in South Africa, the Tribunal found it was not able to take his interests into account as he is not in Australia at the time of the Tribunal's decision: TD [105]. The Tribunal had regard to the applicant's other family members and social links residing in Australia: TD [109] - [111], as well as the length of time that the applicant has resided in Australia: TD [112] - [113]. The Tribunal ultimately found that Primary Consideration 3 confers a strong weight in favour of restoring the applicant's visa: TD [114].
10. Similarly, the Tribunal considered the best interests of minor children in Australia, including the applicant's biological children, step-children, children of the applicant's cousins and a niece of the applicant, and concluded that Primary Consideration 4 confers a strong weight in favour of revocation: TD [117] - [154].
11. The Tribunal found that due to the very serious nature of the applicant's offending, Primary Consideration 5 confers a heavy weight in favour of the Tribunal affirming the Non-Revocation Decision: TD [157] - [169].
12. The Tribunal allocated neutral weight to Other Consideration 1: TD [170]. It found that Other Consideration 2 confers a strong weight in favour of revocation given the mental health impediments, and impediments relating to the social, medical and economic support available in South Africa in comparison to Australia: TD [172] - [180]. As to Other Consideration 3, the Tribunal considered the evidence of one of the applicant's victims, Ms RP: TD [182]. Ms RP is the applicant's ex-wife and mother of one the applicant's biological children. In her statements, she was supportive of the applicant remaining in Australia: TD [182]. On that basis, the Tribunal allocated a moderate weight to Other Consideration 3: TD [184].
13. As to Other Consideration 4, namely the impact on Australian business interests, the Tribunal noted that the parties were in agreement that this consideration was not engaged by the facts. The Tribunal agreed with that position and allocated neutral weight to Other Consideration 4: TD [185].

CONSIDERATION

1. As set out in [6] above, the applicant advances four grounds of review, which can be summarised as follows:
2. The Tribunal acted on a misunderstanding of the law by concluding that it was not able to take the applicant's brother's interests into account because he is not in Australia at the time of the decision: TD [105].
3. The Tribunal engaged in a constructive failure to exercise jurisdiction by failing to take into account the impact on the applicant's aunt's Australian cleaning business: TD [185].
4. The Tribunal acted on a constructive failure to exercise jurisdiction by failing to inquire about whether the applicant could produce evidence regarding the material or information provided to Dr Yoxall: TD [51]. While the applicant's amended originating also included the claim that the Tribunal failed to inquire as to what documents were provided by the applicant to the Tribunal, the applicant made no submissions in relation to this claim.
5. The Tribunal took into account an irrelevant consideration in two regards:
   1. The Tribunal took into account the full extent of the warning given by the Minister, which was an irrelevant consideration.
   2. The Tribunal's reliance on the warning given by the Minister, which was issued without statutory authority.
6. I will consider each of these grounds in turn.

1. The applicant's first ground of review impugns the Tribunal's finding at [105], as follows: I also make mention of both the written and oral evidence of the Applicant's brother, Mr Damien Pillay who was the subject of a matter involving the cancellation of his visa consequent upon the offending history he compiled in Australia. Mr Damien Pillay was not successful in revoking the mandatory cancellation of his visa and in June 2023 he was removed to South Africa where he remains. While Mr Damien Pillay is the Applicant's brother, I am not able to take his interests into account as an immediate family member of the Applicant because he is not in Australia at the time of my decision in the instant application.
2. The reproduced paragraph above appears under the heading "Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant's immediate family members" (emphasis in original). It is convenient to set out paragraph 8.3(1) of Direction 99: (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
3. The applicant contended that nothing in s 501CA(4)(b)(ii) of the Act prohibited the Tribunal from having regard to the applicant's brother's interests even though he was not in Australia at the time of the Tribunal's Decision, relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. It was submitted that where the decision-maker's reasons demonstrate that there has been a misunderstanding of the applicable law, that may give rise to jurisdictional error: Plaintiff M1-2021 v Minister for Home Affairs [2022] 400 ALR 418 at [27].
4. The applicant submitted that notwithstanding that it was clear that he sought to rely on his brother's evidence in support of his review, the Tribunal did not consider his evidence. Indeed, the applicant contended that the Tribunal's statement that it was not able to take the brother's interests into account was "unlawful". The applicant also drew a distinction between the "impact" of the decision on the brother and the "interests" of the brother, contending that the interests of the brother conveys a broader ambit and includes the evidence more broadly of the applicant's brother as to why the Cancellation Decision should be revoked. The applicant also relied on the Full Court decision of Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 in support of his suggestion that the Tribunal could have had regard to the "human consequences" of the decision on the applicant's brother.
5. The Minister contended that when read fairly and in context, the Tribunal was not proposing that it is prohibited from taking into account the brother's interests generally, but that the brother's interests were not within the scope of para 8.3(1) of the Direction as he was not in Australia at the time.
6. It is true that nothing in s 501CA(4)(b)(ii) of the Act prohibits the Tribunal from having regard to the applicant's brother's interests. However, on a fair reading of the Tribunal's decision, that is, a reading in context and without an eye attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272), it can be understood that the Tribunal was not making a general statement that it cannot take into account the brother's interests at all. It can be fairly understood that the Tribunal was referring to the matters it is to take into account pursuant to para 8.3(1) of Direction 99, which includes that the Tribunal is to consider the impact on the applicant's immediate family members in Australia where they "are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely".
7. As submitted by the Minister, that the Tribunal did not make findings with respect to the impacts on the brother does not necessarily mean that they were not considered at all: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [34]. The Court is entitled to infer that any matter not mentioned in the decision was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [68] - [69]. As observed by the Full Court of this Court (Bromberg, Jackson and Feutrill JJ) in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 11 at [54], while Yusuf related to s 430 of the Act, s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), pursuant to which the Tribunal's Decision was made, contains a similar requirement at s 43(2B) of the AAT Act. This inference could be drawn where it can be "sensibility understood": SZSRS at [34].
8. The applicant's brother's evidence before the Tribunal included a written statement which largely concerned the unfavourable conditions in South Africa, and how they were affecting him. However, the statement also included: …I know if he is allowed to remain in Australia he will go straight to work and also help me, but if he is removed from Australia that will leave us both in a bad position.
9. The applicant contended that when his brother's statement is read as a whole, he can be taken to be stating that in the context of the hardships he is facing, particularly in the economic sense, the restoration of the applicant's visa would assist him as the applicant would be able to work and assist his brother financially.
10. The applicant's brother also gave oral evidence before the Tribunal. He adopted his written statement and gave further evidence as to the hardships presented by living in South Africa.
11. The extent of the brother's "direct" evidence with respect to Primary Consideration 3 is that set out in the paragraph 34 above. While the applicant submitted that the clear meaning of this statement is that the brother has a "clear dependency" upon the applicant, I prefer the Minister's submission that the applicant's brother's statement as to the impact upon him in the case of non-revocation was "vague and equivocal".
12. Furthermore, regard should be had to the way in which the applicant ran his case before the Tribunal. The applicant's Statement of Facts, Issues and Contentions (SFIC) that was before the first Tribunal hearing included that the applicant's two siblings would be impacted as immediate family members who have an indefinite right to remain in Australia. It appears that this SFIC was prepared prior to the brother's removal from Australia. The applicant's brother's circumstances changed, in that by the time of the second Tribunal hearing, he had been removed from Australia. Save that the applicant's brother's circumstances changed between the hearings, as submitted by the Minister, the applicant did not appear to deviate from the case he had advanced at the first Tribunal hearing as regards Primary Consideration 3. That the applicant did not put to the Tribunal that his brother's evidence should be considered under Primary Consideration 3 is not, by itself, fatal to the applicant: Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 at [32]. However, it is fair to say that the evidence of the applicant's brother that was before the Tribunal was largely directed to the issue of impediments if the applicant is removed from Australia, and in that context, the Tribunal did take it into consideration: TD [178] - [179].
13. In those circumstances, I consider that an inference that such matters were not material to the Tribunal's decision-making regarding Primary Consideration 3 can be "sensibly understood".
14. I further agree with the Minister's submission that the distinction between the reference to "interests" as opposed to "impact" in TD [105] is not meaningful when the Tribunal's Decision is read in context. The Tribunal was considering para 8.3(1) of the Direction in that portion of its decision and there is no indication that the Tribunal intended to broaden the scope of that paragraph by referring to "interests" of the applicant's brother instead of the "impact" on him. In that regard, the Tribunal's reference to the brother's "interests" can be understood as being imprecise language. In any case, as submitted by the Minister, it was open to the Tribunal to consider that the brother's interests were not material in this regard.
15. If the Tribunal did err, the applicant submitted, then the error was material as the interests of the brother could have been taken into account and impacted the balancing exercise of the Tribunal by weighing in the applicant's favour. The applicant also submitted that the "human consequences" could have led to a different outcome had the Tribunal not erred, relying on Hands.
16. If, contrary to my findings, the Tribunal did err, I do not consider that the error is material. I am not satisfied that there is a realistic possibility that the ultimate outcome of the Tribunal's Decision could have been different. As correctly submitted by the Minister, in this case, three primary considerations weighed very heavily against the applicant. The possibility of the Tribunal's Decision changing on the basis of the brother's statement, which can objectively be regarded as vague and equivocal with respect to Primary Consideration 3, is fanciful or improbable: LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [14]. The Court is able to have regard to the evidence to determine whether it was objectively of "marginal significance" such that it could not have realistically affected the result of the case: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [48].
17. Ground one does not succeed.

Ground 2: Engaging in a constructive failure to exercise jurisdiction - Impact on Australian business interests

1. At TD [185], the Tribunal found: Other Consideration (d): Impact on Australian business interests
2. The parties are in agreement that this Other Consideration (d) is not engaged by the facts of this matter. I agree with the parties and will allocate neutral weight to it. (Footnotes omitted.)
3. The reference to the parties being in agreement that the consideration is not engaged appears to be a reference to the following exchanges during the Tribunal hearing: SENIOR MEMBER: All right. And other consideration (d) is not engaged? MR WEST: Yes, that's so. Perhaps, just with respect to other consideration (d), Member, for completeness, you obviously heard that evidence around the applicant's friend's flooring company being keen for staff, but that's not really something that rises to the height of the applicant's removal impacting on business interests. While there was some evidence that they would likely have a job for him, there's no job offer on the table, and there's certainly no active evidence that the business is going to be impacted in a meaningful way if they can't employ the applicant. … SENIOR MEMBER: Now there's a final consideration and I don't think it's relevant here. It relates to whether any delivery of an important service or a major project would be impacted if you were to leave Australia. That doesn't apply to you. Do you agree? MR PILLAY: Yes, Sir. SENIOR MEMBER: And Mr West agrees, so we can put that to one side.
4. The Minister also contended in his SFIC that Other Consideration 4 is not engaged.
5. By ground two, the applicant contended that the Tribunal failed to consider any impact on Australian business interests if he was not allowed to enter or remain in Australia, which was a mandatory consideration in accordance with para 9.4(1) of the Direction. That paragraph is in the following terms: (1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
6. The applicant also appeared to impugn that the applicant was only asked by the Tribunal about the "second limb", being whether the decision would significantly compromise the delivery of a major project, rather than being asked about any impact on Australian business interests generally, as set out in [45] above.
7. The applicant contended that the Tribunal should have considered the impact of a non-revocation decision on the cleaning business of Ms Nancy Chetty, the applicant's aunt. There was evidence before the Tribunal from Ms Chetty, including a written statement and oral evidence. The evidence included that the cleaning company required more staff, that it was difficult to get reliable and responsible persons to work and that her business "will greatly benefit if he comes on board as [she] plan[s] to branch out". It also included that she would employ the applicant and train him to help manage the business and that this will assist her as she currently overworks herself due to staff issues.
8. The applicant made particular reference to Tonga, in which the Court found that the Tribunal had failed to consider a claim that clearly emerged from the evidence with respect to the issue of Australian business interests. In that case, the applicant also did not raise the issue in his SFIC or in closing submissions. The applicant submitted that, as in Tonga, the claim as to Ms Chetty's business interests clearly emerged from the material.
9. The applicant also noted that the applicant was unrepresented before the Tribunal and, in that regard, referred the Court to the case of AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89, wherein the Full Court of this Court (Collier, McKerracher and Banks-Smith JJ) stated at [18]: (d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
10. The Minister contended that Tonga is distinguishable on the basis that there was no evidence in this case that the applicant had any work history as a cleaner. In that regard, the Minister submitted that while Ms Chetty gave evidence that she needed reliable and responsible cleaners, she did not provide a basis upon which it could be said that the applicant would fulfil those requirements. The Minister contended that this is further reinforced by the fact that:

• The applicant gave oral evidence which suggested that he was intending to return to work as a locksmith.
• It was not certain that the applicant would take the job working for his aunt if his visa was restored. The applicant adduced evidence from a person he met in detention who indicated that there was an employment opportunity in the flooring industry. The applicant questioned this friend in a manner which suggested that the applicant had some indecision as to what job he would take were his visa to be restored.
• The applicant did not have a driver's license which was required for the cleaning job.
• The applicant had previously used his employment, including as a locksmith, to offend, for example, by stealing.

1. The Minister argued that there was a lack of connection or probative evidence as to the link between the applicant taking a management position in the cleaning business and any impact that might have upon the business. In that regard, the Minister referred to the case of JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 370; [2023] FCAFC 168, in which the Full Court of this Court (Katzmann, Sarah C Derrington and Kennett JJ) considered that, with respect to the Australian business interests, the evidence did not even rise to a "bare assertion": at [31]. Further, the Minister contended that the applicant did not put as part of his case that the interests of Ms Chetty's cleaning business is a reason why his visa should be restored. Instead, the applicant, in his SFIC adduced before the first Tribunal hearing, and which was not replaced by an updated SFIC for the purposes of the second Tribunal hearing, accepted that para 9.4(1) of the Direction was not relevant. It was against that background that the Minister submitted that it was open to the Tribunal to find that the business interests consideration was not relevant to the case and there was accordingly no misconstruction of para 9.4(1) by the Tribunal.
2. The Minister further submitted, relying on Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 at [50], that the Tribunal's reasons should be read as a whole. In that regard, the Minister argued that the Tribunal did take into account Ms Chetty's evidence including in relation to her cleaning business in other parts of the decision (TD [44], [62] - [63], TD [109]). For instance, the Tribunal considered Ms Chetty's evidence in the context of the applicant's employment prospects as a protective factor under Primary Consideration 1 as well as in its consideration of Primary Consideration 3. Therefore, relying on Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26], the Minister argued that the Tribunal was not required to take the matter into account "repetitiously".
3. In Bale, there was evidence before the Tribunal from the applicant's wife, who was also a victim of the applicant's criminal offending. She gave evidence in support of the applicant's continued presence in Australia. The Tribunal found that her evidence did not raise anything relevant to Other Consideration 3. At [26], Perram J found: … whichever way one looks at it, the fact that Mr Bale's wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal's reasons shows, the Tribunal was well - aware that she was one of his victims. (Emphasis added.)
4. In reply, the applicant argued that the Tribunal's consideration of the applicant's evidence was in the context of its consideration of the applicant's strength, nature and duration of ties to Australia. Therefore, the applicant submitted, Bale is not applicable as Other Consideration 4 does not cover the same matters as Primary Consideration 3. Further, the applicant submitted that the Minister's contentions as to the applicant's work experience were submissions which went to the merits of the applicant's case, and therefore the findings sought are not ones which this Court should make.

Ground 3: Acting on a constructive failure to exercise jurisdiction - Failure to inquire

1. By ground three, the applicant contended that the Tribunal failed to exercise jurisdiction by failing to inquire about relevant matters. The applicant impugns the finding at TD [51] as follows: …The result is that an inference can now be drawn that the [a]pplicant selectively provided material to Dr Yoxall such as to deprive her of fulsomely fact-checking or cross-referencing whatever answer he gave her to a given question against what should have appeared in the remittal bundle before her. This does the Applicant's credit no favours.
2. The applicant also took the Court to the following parts of the Tribunal's Decision:
3. …There were specific and quite material elements of the Applicant's offending that he did not report to the expert psychologist - Dr Jacqui Yoxall-whom the Applicant retained for the instant proceeding. … …
4. This predisposition towards dishonesty is a concerning facet of both the Applicant's offending pattern and in his approach towards instructing Dr Yoxall….
5. Dr Yoxall conducted her usual thorough and detailed assessment procedure in relation to the Applicant… …
6. … …

• the expert opinion propounded at the Hearing before me was that of Dr Jacqui Yoxall. … The significant difficulty with the report and findings of Dr Yoxall is to be found in what the Applicant did not tell her or did not brief to her during her efforts to obtain detailed instructions from him. There is, as I have outlined above, a serious inconsistency between what is recorded about his unlawful conduct in the material and how that conduct was reported to Dr Yoxall. As I mentioned above, whatever gamble he thought he was taking with Dr Yoxall perhaps not being able to turn up the relevant detail demonstrating inconsistency in what he was telling her may have paid off (or regrettably embarrassed) in terms of the findings of an expert professional like Dr Yoxall, that gamble goes nowhere with this Tribunal. The Applicant selectively provided material to Dr Yoxall such as to deprive her of a capacity to fact-check or cross-reference what he was saying to her compared to what the material said about him. … … That risk can be hedged against (1) what has transpired in the past; (2) identified and proven protective factors; and (3) the capacity of the expert's report to resist a challenge to its integrity. Here, we have an Applicant whose Visa has been twice mandatorily cancelled, where none of his now-claimed protective factors have curbed his offending in the past and where the state of the material he briefed to Dr Yoxall (and answers he provided to her) now serve to significantly challenge the integrity of her findings. … …

71. … The integrity of the findings of Dr Yoxall has, to my mind, been seriously impugned by the manner in which the Applicant has caused material to be briefed to her and in certain of the responses he provided to her questions. …
72. The only safe finding about his recidivist risk is this: I will initially and cautiously accept the findings of Drs Palk and Yoxall about the Applicant representing a low recidivist risk but note that they both heavily predicated their respective findings on the Applicant's capacity to remain drug free if returned to the community. However, I have little or no faith in his capacity to do so given (1) his less than convincing evidence of having any such capacity; (2) the past failure of now-claimed protective factors to curb his offending; and (3) his brazen and appalling failure to heed the stern warning from the Respondent's Department after the first cancellation of his Visa, only to reoffend to the extent of triggering a second mandatory cancellation of his visa. Therefore, I will conclude (and find) that this Applicant represents no different a recidivist risk now than was the case at the time of his most recent removal from the community. …
73. Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph compels three enquiries: (i) But this is not the end of the enquiry about the level of the Applicant's acceptance of responsibility for his family violence related conduct. It is necessary to look at the credibility of the Applicant's oral evidence at the Hearing before me. This credibility was the subject of attack by the Respondent's representative on the basis of which specific family violence incidents he did and did not mention to Dr Yoxall. …
74. Those findings arose in circumstances where it emerged during the Tribunal hearing that Dr Yoxall had not been provided with the transcript of the previous Tribunal hearing or QP9 materials. When the applicant was cross-examined about this, he stated that he had given the entire remittal bundle to Dr Yoxall. When Dr Yoxall was cross-examined, she was asked whether the applicant was given an opportunity to review the report for the purpose of fact-checking, to which she responded that it had been provided to the applicant for this purpose. She advised that he identified some factual errors, such as in relation to his partner relocating to a rental home with all of the children and as to his brother who had been deported to South Africa. Further, she gave evidence that she was confident she had not been provided with the transcript of the previous Tribunal hearing or QP9 materials. The applicant did not re-examine Dr Yoxall. In closing submissions, the Minister contended that the failure to provide this material by the applicant to Dr Yoxall went to the applicant's honesty as well as the weight to be ascribed to Dr Yoxall's report. The applicant did not make responsive submissions in this regard.
75. On this application for judicial review, the applicant submitted that the Tribunal failed to inquire as to whether the applicant could produce evidence as to what material was provided to Dr Yoxall. This is advanced on a number of bases, including that the Tribunal or Minister did not put the applicant on notice that such a serious allegation would be made against the applicant, namely that he had selectively provided material to his expert, that the 84-day rule did not apply, such that there was no imperative inhibiting the Tribunal from so enquiring, that such a request would be simple, that the Tribunal was acting within an inquisitorial framework (McKerlie v Repatriation Commission [2010] FCA 1127 at [40] - [43]) and that the applicant was unrepresented before the Tribunal, relying on a decision of mine in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055 at [92]. The applicant characterised the issue as being an ambush.

Ground 4: Taking into account an irrelevant consideration

1. By ground four, the applicant contended that the Tribunal took into account an irrelevant consideration. This is advanced on two bases or "strands". Both strands relate to a warning issued by the Minister's Department on 14 February 2020 after his visa was re-instated following it being mandatorily cancelled for the first time (Impugned Warning). The Impugned Warning relevantly provides: Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds. WARNING FROM THE DECISION-MAKER: "A stern warning should be issued to Mr PILLAY on this occasion, that he must refrain from further offending and continue to rehabilitate, especially given his addiction to heroin. He should not expect to receive any further leniency. The protection and safety of the Australian community is of paramount importance and a salient consideration. The Government has a zero tolerance policy on domestic violence and this kind of behaviour will not be tolerated again nor will any further theft, property offences or breaches of judicial orders." (Emphasis in original.)
2. The applicant also made reference to the Tribunal's statement at TD [58] as follows: The further point of the abovementioned letter is this: the significant majority of these types of letters of warning usually and only contain the words 'Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.' It is, in my experience, rare for such a letter of warning to include a further 'WARNING FROM THE DECISION MAKER'… (Emphasis in original.)
3. The first strand in respect of which the applicant submitted that the Tribunal erred regarding the Impugned Warning is that the Tribunal took into account the full extent of the impugned warning, which was an irrelevant consideration. The second strand refers to the Tribunal's reliance on the Impugned Warning in circumstances where it is alleged that the Impugned Warning was issued without statutory authority or was unlawful.
4. An irrelevant consideration is one which is "extraneous when viewed in light of the provisions, subject-matter, scope or purpose of the relevant statutory scheme": DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237 at [60] (Rofe J), citing Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [20] (Gleeson CJ) and Peko-Wallsend at 40 (Mason J).
5. As to the applicant's submission that the Tribunal erred by relying upon the full extent of the Impugned Warning, the applicant referred specifically to the statements in the Impugned Warning such as that the fact that the applicant's further offending "will not be tolerated again". In that regard, the applicant submitted that there is a clear implication arising from the Impugned Warning that the applicant will be removed from Australia if he engages in further offending of a certain kind.
6. In those circumstances, the applicant contended that the Impugned Warning contravened the administrative law principle that a decision of an executive decision-maker cannot bind a future exercise of executive power, relying on Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211. The Impugned Warning, the applicant argued, purports to stifle the exercise of future executive power. The applicant submitted that the Tribunal repeatedly relied upon the full extent of the Impugned Warning at TD [24], [30], [56] - [58] and [70]-[72]. In particular, the applicant took the Court to the following paragraphs of the Tribunal's Decision:
7. … …

• the letter of warning from the Respondent's Department dated 14 February 2020 furnished to the Applicant: I have recounted the stern warning contained in this letter. Even after his Visa was reinstated which occurred concurrently with receipt of this letter, the Applicant re-offended within four months and then proceeded to commit some 21 additional offences punished by 19 months of head custodial time which also required him to make restitution to victims of his fraudulent conduct in the cumulative sum of nearly $12,000. He totally ignored the contents of the letter requiring him to (1) continue to rehabilitate from his heroin addiction; (2) bear in the mind the paramount importance of the safety of the Australian community; (3) understand that the Respondent would tolerate no further breaches of judicial orders; and (4) understand that he should not expect any further leniency.

71. … It appears in the abovementioned letter from the Respondent's Department dated 14 February 2020. He totally ignored every single one of the warnings appearing in that letter.
72. … his brazen and appalling failure to heed the stern warning from the Respondent's Department after the first cancellation of his Visa, only to reoffend to the extent of triggering a second mandatory cancellation of his visa.
73. The applicant's second strand of ground four refers to an alleged lack of statutory authority to make the Impugned Warning. The applicant submitted that nothing in s 501CA, or, in fact, any part of the Act or Migration Regulations 1994 (Cth) permits the issuance of such a warning. The applicant also specifically impugns the part of the Impugned Warning that states that the applicant "must refrain from further offending and continue to rehabilitate". The applicant submitted that a direction that the applicant must continue to rehabilitate was unlawful as nothing in the Act or Regulations empowers such a direction to be given.
74. I do not consider that the Tribunal's consideration of the Impugned Warning was an irrelevant consideration. As submitted by the Minister, even if the Impugned Warning was beyond the Minister's powers (which is not accepted by the Minister) the Tribunal is not required to disregard it. Relying on Hossain v Minister for Minister and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] - [25], the Minister contended that the Tribunal could rely on the Impugned Warning as a "factual phenomenon" notwithstanding that it may not have legal force (if it was made beyond power). I agree with this submission.
75. Further, while the applicant drew the Court's attention to some of the conclusionary language of the Impugned Warning, as pointed out by the Minister, it contains other language as well, such as that if the applicant engages in further criminal or other serious conduct, "this may again result in [his] visa being cancelled on character grounds" (emphasis added). Additionally, the applicant is told that he "should not expect to receive any further leniency" (emphasis added). Neither of those statements support the applicant's characterisation of the Impugned Warning as stating that the applicant will be removed from Australia if he engages in further offending.
76. As to the applicant's contention that the Impugned Warning was made without statutory power, the Minister submitted that he had "non-statutory general powers and liberties", relying on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214; [2023] HCA 10 at [127] - [137]. Further, he submitted that the Impugned Warning cannot be taken higher than being a warning to discourage the applicant from reoffending and encourage him to rehabilitate, which is within the ministerial functions. To that end, the Minister submitted that the Impugned Warning states that the applicant "should not expect to receive further leniency", which is not the Minister stating he will be removed from Australia if he reoffends.

CONCLUSION

1. For the above reasons, the application should be dismissed. There is no reason why costs ought not follow the event. Therefore, the applicant must pay the first respondent's costs as agreed or taxed. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.