Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs

Legislative scheme 11 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) and s 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is common ground that the applicant does not pass the character test. 12 The rules of natural justice do not apply to a decision made under s 501(3A): s 501(5) of the Act. Therefore, a person's visa is cancelled without that person being afforded procedural fairness: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [10]. 13 A consequence of the cancellation of a visa under s 501(3A) is that that the former visa holder is no longer a lawful non-citizen and becomes an unlawful non-citizen: ss 13, 14, 15 of the Act. The former visa holder must be taken into immigration detention and must be removed (deported) from Australia as soon as reasonably practicable: ss 189 and 198 of the Act. 14 Section 501CA(3) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as relevant information); and (b) 'invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision'. Regulation 2.52 of the Migration Regulations 1994 (Cth) makes provision for the manner in which representations are to be made to the Minister. 15 Section 501CA(4) of the Act provides that the Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked. 16 Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister's powers under the Act. A delegate is, in the exercise of a delegated power, subject to the directions of the Minister. Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. 17 The Minister has issued a number of directions regarding the exercise of a delegate's power under s 501CA(4) of the Act. The applicable direction in this case was Direction 79. Under s 499(2A), the delegate was required to comply with Direction 79. The Tribunal in the exercise of its 'review' function under s 500(1)(ba) of the Act, was also obliged to comply with Direction 79. In so doing, the delegate and the Tribunal were obliged, when considering if there were another reason to revoke the original decision, to consider the risk to the Australian community should the former visa-holder commit further offences or engage in other serious misconduct. And, in considering that risk, the delegate and the Tribunal were obliged to have regard to the likelihood of the former visa-holder engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the former visa-holder re-offending. 18 Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to revoke a mandatory cancellation of a visa is a privative clause decision. However, where a delegate of the Minister has made such a decision, the former visa-holder has a right to apply to the Tribunal for a 'review' of that decision under s 500(1)(ba) of the Act. A decision of the Tribunal under s 500(1)(ba) is also a privative clause decision to which s 474 of the Act applies. 19 Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Court. Otherwise, s 474 of the Act and s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), exclude any right to appeal to the Federal Court from a decision of the Tribunal that is a 'privative clause decision'. 20 The Federal Court's original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476A(1)(b) of the Act. The effect of ss 474 and 476A of the Act is to limit the jurisdiction of the Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a 'migration decision' that is a 'privative clause decision or a purported privative clause decision' of the Tribunal on review under s 500(1)(ba) of the Act. The Court's power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. 'The inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred': Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160]. 21 The constitutional writs referred to in s 75(v) of the Constitution extend the Court's jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or an injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of the limits of statutory authority or a declaration of right pertaining to the exercise or failure to exercise power: e.g., Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

Extension of time 22 An application to the Court for a remedy to be granted in the exercise of the Court's original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision. However, the Court may, by order, extend that 35 day period as the Court considers appropriate if an application is made in writing for such an order and the Court is satisfied that it is in the interests of the administration of justice to make the order: s 477A(2) of the Act. 23 In this case, the relevant migration decision was made on 22 December 2020. An application for judicial review of that decision was not made within 35 days. On 17 January 2022, an application for an extension of the 35 day period was made under s 477A(2) of the Act and r 31.23 of the Federal Court Rules 2011 (Cth). 24 Subject to the conditions precedent referred to in [22], the Court has an unfettered discretion to grant an extension of time under s 477A(2). Nonetheless, there are a number of factors that the Court will usually take into account in the exercise of the discretion of this nature, such as: (a) the length of the delay and any explanation for the delay in making the application; (b) the merits of the proposed grounds of judicial review; and (c) any prejudice to the respondent in granting the extension of time: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) FCR 442 at [46]-[48] and [52]. When considering the merits of the proposed grounds, they are to be assessed at a level of impression so as to be satisfied that, if the extension of time were granted, the grounds of review have reasonable prospects of success: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] and [66] and FKV17 v Minister for Home Affairs [2002] FCAFC 93; (2022) 402 ALR 492 at [95] and [150]-[153]. 25 In this case, there is an unexplained period of delay between the date of the migration decision on 22 December 2020 and June 2021 when the applicant's mother contacted the applicant's solicitors to request assistance for her son. The applicant was self-represented in the hearing before the Tribunal and was, and still is, in prison. I infer from these facts that part of the delay relates to the applicant securing legal representation. 26 A further period of delay between June 2021 and January 2022 is explained by time taken to obtain relevant documents and provide the applicant with legal advice. Part of the delay also appears to have arisen from the unavailability of senior counsel during the Christmas/New Year period. 27 While the Minister opposes the application for extension of time on the basis that it lacks sufficient merit when assessed on an impressionistic level, there is no evident prejudice to the Minister if leave were granted. The Minister made no submissions to the contrary. 28 Having regard to the parties' written and oral submissions and the manner in which the asserted jurisdictional error was ultimately formulated, which are addressed in more detail later in these reasons, I am satisfied that the proposed ground of review has sufficient prospects of success to warrant a full consideration of the merits of the application. Taking into account the severe consequences of the cancellation of the applicant's visa for the applicant and his family, that there is an explanation for the delay (or at least part of it) and that there is no apparent prejudice to the Minister, I am satisfied that it is in the interests of the administration of justice that an extension of time is granted. It follows that I grant the applicant the requested extension of time to apply for review of the Tribunal's decision.

Issues 29 Although expressed as a single ground of review, there are two distinct components to it. First, it is asserted that the Tribunal misunderstood or failed to have regard to the applicant's claims about his remorse to the effect that he accepted full responsibility for his crimes, that he accepted that he had been in a vehicle with his co-accused for the purpose of assisting in drug trafficking and that he was remorseful and did not downplay his previous offending. Second, it is asserted that there was a failure to consider or to give proper consideration to probative information about the risk of the applicant re-offending. That information was contained in two documents of the Western Australian Department of Justice: a treatment assessment report of 21 May 2020; and a classification review of 9 March 2020. The applicant contended that these documents contained 'independent evidence' of, at least partial, rehabilitation of his methyl-amphetamine addiction, the principal cause of his most serious offences. 30 The issues raised by the ground and the applicant's submissions may distilled to the following: (1) whether the material, information or evidence of which the treatment assessment report and classification review were comprised was of such importance to the risk of re-offending that, if that material, information or evidence were not considered, it could not be said that the risk to the Australian community had been properly considered; and, if so (2) whether the Tribunal failed to consider the documents as material, information or evidence of that degree of importance and, thereby, the Tribunal failed in its statutory function to 'review' the delegate's decision, and (or) (3) whether the Tribunal misunderstood or failed to have regard to the applicant's claims about his remorse; and, if so (4) whether that misunderstanding or failure resulted in the Tribunal failing in its statutory function to 'review' the delegate's decision.

Applicable principles 31 It is not easy to provide a clear, concise and coherent statement of the principles to be applied in order for the Court to grant relief for jurisdictional error. Part of the difficulty is that the term 'jurisdictional error' describes a conclusion rather than a legal principle as such. It is 'an expression not simply of the existence of error but of the gravity of that error': Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25]. 32 In Hossain, in connection with gravity of error, Kiefel CJ and Gaegler and Keane JJ said (at [29]) (footnotes omitted): That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinary (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that a condition or another condition be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. 33 Nonetheless, at the heart of the concept is the notion that administrative decision-makers and tribunals of limited jurisdiction must exercise decision-making powers when the legislative framework obliges them to do so and, in any case, within the legislated boundaries of those powers. Relevantly, jurisdictional error arises, subject to materiality, where a decision-maker fails to exercise power when obliged to do so, or exceeds the statutory limits of power: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72]; Craig v The State of South Australia (1995) 184 CLR 163 at 176-180. 34 As there are countless statutory administrative decision-makers and tribunals of limited jurisdiction and myriad ways in which a decision-maker may be obliged to exercise powers or may exceed the limit of statutory powers in the circumstances of any given case, it: 'is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.' Further, while it is possible to identify various 'categories' of 'jurisdictional error', there is no 'rigid taxonomy': Kirk at [64], [71], [73]. Descriptions of 'categories' tend to be examples of jurisdictional error, with ever increasing degrees of overlap and refinement, of various ways in which an administrative decision-maker or tribunal of limited jurisdiction may exceed its jurisdiction or fail (actually or constructively) to exercise jurisdiction it is bound to exercise. 35 As Martin CJ observed in Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 at [95] (citations omitted): The reasons of the plurality in Kirk, and other observations in more recent decisions of the High Court on the subject of jurisdictional error support an approach to the identification of jurisdictional error which does not place undue emphasis upon the application of general verbal formulations or the characterisation of functions. Rather, the current approach focuses upon identification of the boundaries of the jurisdiction conferred upon a decision-maker by a process of construction of the statute conferring jurisdiction, and then assessing whether the particular acts of the decision-maker have taken him or her beyond jurisdiction. In other words, the identification of jurisdictional error in any particular case will depend critically upon the proper construction of the particular statute conferring jurisdiction, and the findings made with respect to the particular acts which are said to have taken the decision-maker beyond jurisdiction. 36 It follows that the starting point is to determine what the Tribunal was permitted or required to do in accordance with the applicable legislation. It is then necessary to consider what action or inaction of the Tribunal it is contended took the Tribunal outside its jurisdiction or comprised a failure to exercise jurisdiction when it was bound to do so.

The Tribunal's 'review' function 37 There are many authorities that have considered if a decision-maker has made a jurisdictional error in connection with a decision not to revoke a mandatory cancellation of a visa under s 501CA(4) of the Act. However, there are three categories of decision-maker who have jurisdiction to make a decision under s 501CA(4) and each category of decision-maker is exercising different legislative power or jurisdiction. 38 First, the Minister may make a decision under s 501CA(4) of the Act. In such cases, s 499 and any direction under that section are not directly applicable. Further, the former visa-holder's 'case' is likely to be confined to the representations made in response to an invitation under s 501CA(3). The former visa-holder has no right to apply to the Tribunal for a 'review' of such a decision. However, the Minister's decision may be reviewed for jurisdictional error under s 75(v) of the Constitution. 39 Second, a delegate of the Minister may make a decision. In such cases, s 499 applies and the delegate is bound to apply any direction made under that section. Therefore, the delegate is subject to mandatory relevant considerations contained in any direction. Such considerations are not mandatory for the Minister. As for a decision of the Minister, the former visa-holder's 'case' is likely to be confined to the representations made in response to an invitation under s 501CA(3). A delegate's decision may be reviewed for jurisdictional error under s 75(v) of the Constitution and, also, may be made the subject of 'review' by the Tribunal under s 500(1)(ba) of the Act. 40 Third, the Tribunal may make a decision upon 'review' of a delegate's decision. In such cases, s 499 applies and the Tribunal is bound to apply any direction made under that section in the same way that a delegate is bound. Therefore, the Tribunal is also subject to mandatory relevant considerations contained in any direction. While the Tribunal will have before it all of the relevant material that was available to the delegate, the Tribunal may have additional material provided during the exercise of its review function. Therefore, the former visa-holder's 'case' before the Tribunal is not necessarily confined to the representations made in response to an invitation under s 501CA(3) or to the 'case' as presented to the delegate of the Minister. 41 Section 500(1)(ba) of the Act confers on a former visa-holder a right to apply for 'review' of a decision of a delegate refusing to revoke cancellation of a visa. That 'review' falls within the general division of the Tribunal. It is a substantive right to a 'review' and that is the function that the Tribunal is performing under the Act and the AAT Act. While the Tribunal may exercise all the powers and discretions conferred on the delegate (s 43 of the AAT Act), the Tribunal is not exercising the same jurisdiction as the delegate. Thus, the nature of the Tribunal's review is informed by the provisions of the AAT Act and s 500 of the Act: Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 at [62] - [69]. 42 Where, as here, the delegate's decision relates to a former visa-holder in the migration zone, then s 500 makes provision for the Tribunal to receive, in effect, all documentary information that was relevant to the making of the delegate's decision: ss 500(6C), 500(6F) and 501G of the Act. That information includes not only the former visa holder's representations, but all other relevant information in the possession or under the control of the delegate or Minister. Sections 500(6G) - 500(6L) of the Act contain other provisions governing the procedure of a hearing in the Tribunal under s 500(1)(ba). Otherwise, as the 'review' is in the general division of the Tribunal, it is subject to the general procedural and other provisions of any review within the Tribunal's jurisdiction. 43 In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: is accessible; and is fair, just, economical and quick; and is proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision-making of the Tribunal: s 2A of the AAT Act. The procedure is within the discretion of the Tribunal, but is to be conducted with as little formality and technicality and with as much expedition as the requirements of the AAT Act and of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1) of the AAT Act. 44 In general, the Tribunal's procedures require each party to file and serve a statement of facts, issues and contentions and the Tribunal will conduct an oral hearing: ss 34J and 35 of the AAT Act; General Practice Direction of the Tribunal, paras 4.28 and 4.31. The Tribunal is to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents: s 39(1) of the AAT Act. 45 For the purposes of reviewing a decision, the Tribunal may take evidence on oath or affirmation. A presiding member may require a person to appear before the Tribunal for that purpose and may administer an oath or affirmation for that purpose: s 40 of the AAT Act. The President or an authorised member or officer of the Tribunal may summons a person to appear before the Tribunal to give evidence or produce any document or other thing specified in the summons: s 40A of the AAT Act. 46 For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal: s 43(1) of the AAT Act. 47 The Tribunal must give reasons for its decision. Where the Tribunal gives written reasons for its decision, those reasons must 'include its findings on material question of fact and a reference to the evidence or other material on which those findings were based': ss 43(2) and 43(2B) of the AAT Act. 48 It follows that upon a 'review' under s 500(1)(ba), the materials before the Tribunal include, but are not confined to, materials relevant to the delegate's decision and the applicant's 'case' is not confined to the 'representations' made to the delegate of the Minister in response to an invitation made under s 501CA(3). The applicant may expand his or her 'case' in the statement of facts, issues and contentions and through the provision of further information or evidence to the Tribunal. 49 It is well-established that the question for determination of the Tribunal is whether the decision under review (the decision of the delegate of the Minister) was the correct or preferable one on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98]. In its proceedings, the Tribunal is obliged to act judicially, that is, with judicial fairness and detachment. In its review, it is subject to the general constraints to which the administrative decision-maker was subject: Drake at 589. 50 For the purpose of reviewing a decision, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration: Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17]. However, the nature of the Tribunal's review function is inquisitorial rather than adversarial. The manner in which parties conduct their 'cases' before the Tribunal does not have the same significance as the way in which parties conduct adversarial litigation before a court. The Tribunal is required to determine the substantive issues raised by the material and evidence before it and is not obliged to limit its determination of the 'case' articulated by an applicant if the evidence and material it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47].

The importance of an applicant's 'case' in the Tribunal 51 In the context of a 'review' under s 500(1)(ba), when identifying the 'case' before the Tribunal the 'representations' of the applicant (whether as originally made to the delegate of the Minister or as augmented in the Tribunal) remain central to ascertaining the nature of 'review' the Tribunal is required to perform under the Act and the determination of whether there is 'another reason' why the cancellation should be revoked: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34(g)]; KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 (at [51] - [52]). 52 In Plaintiff M1/2021 (at [22] - [27]) the majority of the High Court summarised the principles applicable to a decision-maker's consideration of the 'representations' of a former visa-holder in a manner that emphasised the importance of an applicant's 'representations' to the exercise of the discretion under s 501CA(4) of the Act as follows (most footnotes omitted): 22 Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is 'another reason' why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is 'another reason' for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations. 23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered. 24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder. 25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. 26 Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40; see also 30, 71], '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker. 27 None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. 53 These principles are directed to the manner in which a delegate of the Minister must address a former visa-holder's representations. However, the passage from Plaintiff M1/2021 quoted above is informed by well-established principles that concern jurisdictional error for failure to consider a matter, or adequately consider a matter, that are of broader application and apply equally to a 'review' of the Tribunal under s 500(1)(ba) of the Act: KXXH at [46]. 54 While the High Court has said that it is improbable that Parliament intended that a decision-maker must treat every statement within representations made by a former visa-holder as a mandatory representation (i.e., the representations must be considered as a whole), when considering the former visa-holder's 'case' (as a whole), the Tribunal is required to consider all 'representations' or 'claims' made by the former visa-holder and the essential components or integers of those representations or claims: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]; Hong at [66]. 55 Also, as to the established principle to which reference is made in [27] of Plaintiff M1/2021 as quoted above, a failure to respond to 'a substantial, clearly articulated argument relying upon established facts' can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (i.e., a failure to perform the 'review' in accordance with the Act and AAT Act): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 389 at [24] - [32]. Further, the Tribunal is not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject raises a 'case' that is not articulated: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1990) 90 FCR 287 at 293-294; Hong at [66] - [69]; AYY17 at [18]. 56 Additionally, when considering the extent to which a claim is 'articulated' or 'unarticulated' or if it 'clearly emerges' and, therefore, was considered by the Tribunal it is important to bear in mind that there is no 'clear distinction' between claims and evidence: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (at [111] - [114]). The absence of a clear distinction between 'claims' and 'evidence' means that an 'unarticulated' reason (or integer of a reason) for revoking a decision to cancel a visa may more readily been seen to emerge from information or evidence because that information or evidence may reveal an unarticulated aspect of the applicant's 'case': SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [22] - [25]. Put another way, materials, information or evidence may in and of themselves supply a reason for revoking cancellation of the visa without the need for an applicant to specifically identify that 'reason' or expressly place a 'label' on the information, materials or evidence as another reason for revoking the cancellation of the visa. However, the 'fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error': Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531at [28]-[30].

The importance of s 499 Directions 57 In the context of a 'review' of a decision of a delegate of the Minister, directions made under s 499 of the Act are also central to ascertaining the nature of the review the Tribunal was required to perform. In this instance, the delegate of the Minister was required to apply Direction 79. The Tribunal is in no different position. Direction 79 may be regarded as a mandatory relevant consideration of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40. 58 Paragraph 6.2(3) (General Guidance) of Direction 79 provides that the 'factors that must be considered in making a revocation decision are identified in Part C of [the] Direction' (emphasis added). Paragraph 7(1)b) provides that '[i]nformed by the principles in paragraph 6.3…a decision-maker … must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of non-citizen's visa will be revoked' (emphasis added). 59 Paragraph 8(1) of Direction 79 provides that '[d]ecision-makers must take into account the primary and other considerations relevant to the individual case'. Paragraph 8(2) provides that '[i]n applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight' (emphasis added). 60 Part C of Direction 79 contains the considerations relevant to determining whether to revoke cancellation of a visa. Paragraph 13(1) of Part C provides that '[w]here the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case' (emphasis added). Paragraph 13(2)a) provides that in deciding whether to revoke the mandatory cancellation of a non-citizen's visa, protection of the Australian community from criminal or other serious misconduct is a 'primary consideration. Paragraph 13.1(2)b) provides that '[d]ecision-makers should also give consideration to … [t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious misconduct'. 61 Paragraph 13.1.2 of Direction 79 is in the following terms: 13.1.2 The risk to 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 rehabilitative courses to be undertaken). (Emphasis added.) 62 While both s 500 of the Act and the AAT Act contemplate the participation of the applicant and the Minister in the Tribunal hearing and s 500(6H) of the Act contemplates expressly that the applicant will present a 'case' and implicitly that the Minister will also present a 'case', the High Court has 'cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making of the kind authorised by s 500 of the Act'. Further, it 'would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account' a matter of which the Tribunal was aware and that the Tribunal was obliged to take into account by the terms of s 499 and Direction 79. Direction 79 imposes on decision-makers a requirement to consider the 'primary considerations' in terms which are not dependent on whether an applicant for review argues that those considerations are relevant as part of the applicant's 'case' in the Tribunal: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [63] - [64]. 63 Thus, if there is material before the Tribunal that raises a matter that Direction 79 requires a delegate to take into account, the Tribunal cannot ignore that material. The Tribunal is required to consider the material and the issue irrespective of whether or not the matter and material is the subject of an applicant's 'representations' or 'case' before the Tribunal: Uelese at [61]-[68]. Provided that the material and matter is considered, the weight to be attributed to the material and subject matter is, of course, a matter for the Tribunal. However, it would fail to perform the statutory task of 'review' of the delegate's decision if the material and matter were not considered at all. That includes salient evidence or central matters that go to the risk to the Australian community and the likelihood of the applicant re-offending: see, e.g., DFW18 v Minister for Home Affairs [2019] FCA 599; (2019) 165 ALD 259 at [18] - [28]. 64 It follows that the risk to the Australian community should the applicant commit further offences or engage in other serious misconduct and, in particular, the likelihood of the applicant engaging in further criminal or other serious conduct were mandatory relevant considerations in accordance with s 499 of the Act and Direction 79. In that context, a failure to be aware of, or to consider evidence that is material to that consideration may involve jurisdictional error: Peko-Wallsend at 45-46, 61.

The importance of the Tribunal's 'consideration' of the evidence 65 As noted earlier in these reasons, there can be a failure to consider a claim because the Tribunal has misapprehended the applicant's claim or has ignored a claim that clearly emerges from the evidence and materials. However, there can also be a failure to consider a claim, properly understood and identified, if evidence of that claim is ignored or not considered in the sense of an active intellectual engagement with the evidence. 66 The 'review' function of the Tribunal requires an 'active intellectual process' in assessing the merits of the 'case' when making a decision that contemplates the exercise of power under s 501CA(4) of the Act: Plaintiff M1/2021 at [24]. That involves the Court making an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of the case in question: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [35], [47]-[48]. See, also, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], [49]-[51]. 67 After citing the passage quoted from Plaintiff M1/2021 referred to above, the Court in KXXH elaborated on the applicable principles (at [47] - [54]) in the following way which is relevant to the issues raised in the present application for judicial review: 47 First, a conclusion that the decision-maker '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 at [48] (the caution with which the label 'active intellectual process' must be approached does not detract from the standard expressed there). The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38], as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ). 48 Second, as the Full Court said in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ): Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line', to quote Lafu [[2009] FCAFC 140; (2009) 112 ALD 1] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. … 49 'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). 50 Third, each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)]. The reasons must be considered by reference to the facts of the case and must be construed in a practical and common sense manner: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [47]. 51 Fourth, although the need to consider MS's grandchildren did not come from the appellant's representations, those representations remain relevant. In Omar at [34(g)] the Full Court said (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) (emphasis in original): The representations play a central role in the relevant statutory regime. The Minister's statutory power to revoke (and therefore 'undo') the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister's determination of whether he or she is satisfied that there is 'another reason' why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. … 52 The passage from Plaintiff M1/2021 quoted above confirms the importance of the representations to the exercise of the discretion in s 501CA(4). More broadly, the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46]. 53 It is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J). 54 Fifth and in any event, the fact that the Tribunal has not mentioned particular information does not necessarily mean that it has not considered that information. Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in any written reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ, Stone J agreeing). That entitles the Court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ) (a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act which applied here is not materially different). However, the Court need not make that inference. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example, because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [19] (Perram J). On the other hand, while a failure to deal with an issue in the decision-maker's reasons may indicate a failure to consider the issue, that inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47]. The appellant's submission that the Tribunal should not keep the reader guessing does not accurately state the standard to be applied. Cases such as these frequently require the Court, if not to guess, then to draw inferences from matters that have not received complete expression in the Tribunal's reasons. In addition, the following further principles are relevant to this case. (1) The failure to consider a document that is particular to an applicant and of material importance to the applicant's claim may result in jurisdictional error. That is, a failure to perform a 'review' of the kind the Tribunal is required to undertake: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]. (2) 'Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered … [t]he serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an "unacceptable risk" or a "grave and serious risk", may not be sufficient to clothe a statement of reasons with impunity.': Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [46]. (3) '[T]here is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that [there was a reason for considering that there was little risk to the Australian community]': Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45] - [47]. (4) Although overlooking particular evidence may be central in some circumstances, the distinction between overlooking a claim and overlooking evidence remains a useful tool in determining whether a decision-maker has made a jurisdictional error and ultimately what is required is a balancing of the importance of the overlooked information and the gravity of the error: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [108]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [49], [54]. (5) 'A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.': Peko-Wallsend Ltd at 61. (6) The Tribunal makes no jurisdictional error if it merely misunderstands the evidence or makes an incorrect finding of fact. However, if the Tribunal fails to understand the claim and address the evidence with respect to that claim, it may make a jurisdictional error: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28]. 68 It follows that the Tribunal may make a jurisdictional error if it correctly understands the applicant's case, but fails to consider or evaluate material evidence directed to that case. In such circumstances there may be a failure to conduct the 'review' of the decision that is required under the Act because the Tribunal has not engaged with the submission or 'case' of the applicant: BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114 at [54] - [64]. However, 'an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the [Tribunal] has not considered the applicant's claim': SZNPG at [28].

Materiality 69 It is not necessary in this case to delve into the nature and extent of any implicit threshold of materiality. The question of 'materiality' was not raised as reason for denying the applicant relief in the event that it is found that the Tribunal made an error of the asserted nature. That is, it is not contended that if an error of the asserted kind were made it was not material or that the applicant has not discharged the onus of proving that the error was material. In any event, given the nature of the asserted errors concern an alleged failure to consider a claim or evidence in support of a claim, the nature of the alleged error would meet the undemanding standard of 'reasonable conjecture' that the applicant was deprived of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [1], [30]-[33], [39], [41]-[47], [76]-[80], [95], [105], [127].

The applicant's representations and case before the Tribunal 70 The applicant completed a Department of Home Affairs (as the department was then known) form entitled 'REQUEST FOR REVOCATION OF A MANDATORY VISA CANCELLATION UNDER S501(3A)'. The form included 'PART A - Reasons for requesting revocation'. The box provided for 'Reasons for Revocation' was completed in handwriting. The reasons focus on the applicant's family and relationship with his children, stepchildren and grandchildren, the impact removing him from Australia would have on him and his family and the absence of any warning, in substance, that offending could result in cancellation of his visa. The applicant also said: 'I have distanced myself from all elements that have put me in the position I find myself in'. Otherwise, that form contains no specific references to the remorse or rehabilitation of the applicant. 71 The applicant also completed a Department of Home Affairs 'PERSONAL CIRCUMSTANCES FORM'. That form was completed in handwriting. It also focuses on the applicant's family and the impact removing him from Australian would have on him and his family and does not contain any specific references to remorse or rehabilitation. However, in the section headed '10. CRIMINAL HISTORY AND RISK OF REOFFENDING', the applicant made the following relevant statements: Outline any factors you believe help explain your offending, that you want the decision-maker to take into account. I have well and truley learnt my lesson with my time in jail being a real eye opener. I Started taking drugs socially and didnt realize the extent of my addiction until it was too late. I lost sight of what is so important to me, which is my family. I was selfish and stupid and am very lucky to still have the love and support of my family. If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence. I attend narcotics anonymous regularly. … Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons. There is absolutely no risk of re-offending. I have the suport of my family. Ater spending, this time in jail I have realised what is important to me and getting back to work and family life is my priority. This has been a wake up call that I will not forget. I am looking forward to going home and being the husband and father that I was before. … (As in handwritten original.) 72 In the section headed '14. ANY OTHER INFORMATION', the applicant made the following further statements: Please outline or provide any other information you would like the decision-maker to consider when making their decision in relation to your case. I have not received any warnings. I am truely sorry for my actions and ask you to please let me stay with my family. If so I can asure that I will never be in this position again. I have no interest whatsoever in taking or being involved in Drugs again. (As in handwritten original.) 73 In Section 3 of the applicant's application for review in the Tribunal his reasons for the application were stated to be: 'Seeking further Consideration to residency within Australia on ground of Persona Relationship, Working Status and lifestyle Support networks [sic]'. That form contained no specific reference to remorse or rehabilitation. 74 The documents before the Tribunal included an undated handwritten document headed 'To Whom it may Concern' evidently signed by the applicant. In that document the applicant said: I am writing this letter in suport of my parole application. If granted I can asure you that I will not re-offend. I have well and truly learnt my lesson with my time in jail being a real eye opener for me. I started taking drugs socially and didnt realize the extent of my addiction until it was too late and I had well and truly hit rock bottom. … … I have no interest what so-ever of using or being asociated in the drug scene ever again. I plan to keep my promise to my family never to use again and rekindle all aspects of my life that mean so my to me. … (As in handwritten original.) 75 The documents before the Tribunal included a handwritten document dated 20 July 2020 evidently signed by the applicant. In that document the applicant said: You will see by the many Drug + Alchol test I have been staying away for any sort of substance abuse and will continue to do so. … Since being in jail I have realized the ripple effect my behaviour has had on my family and the community. I am lucky to have the love and respect of my family still. I realise that it is a privalige not a right to live in Australia something that I never thought of before and took for granted, but never do so again. … I am a minimum security prisoner now I have a trusted job in the supermarket. Also I have no contact with any of the bad influence that helped get me here nor do I wish to. … (As in handwritten original.) 76 The applicant also filed a statement of facts, issues and contentions in the Tribunal. That document was largely a response the respondent's statement of facts, issues and contentions. In his statement of facts, issues and contentions, the applicant contended that he was 'no risk to the Australian community'. He also said 'I in no way dispute the seriousness of my stupidity and actions' and: I AM 51 YEARS OF AGE, AND BY THE TIME IM ELIGIBLE FOR PAROLE, I WILL BE FIFTY FOUR. I NEVER THOUGHT FOR ONE SECOND, THAT I WOULD BE IN THIS POSITION. THE LIKELYHOOD OF MY REOFFENDING IS ZERO. MY GOAL IN LIFE, MY FUTURE IS TO MAKE AMENDS AND BECOME PART OF THE COMMUNITY IN A PRODUCTIVE AND LAW ABIDING MANNER. (As in handwritten original.) 77 In the respondent's statement of facts, issues and contentions, the following contention was made: 34. There is insufficient independent evidence before the Tribunal to demonstrate that the applicant is rehabilitated. The fact that he is not rehabilitated means that the risk of harm arising out of him reoffending is real. The conclusions that the applicant is not rehabilitated and that there is a real risk that he will reoffend flow from the following matters: a. The evidence suggests that the applicant's own drug addiction, from which he has suffered for "years" (G10/35), was a significant contributor to his drug dealing offending (G10/32, G11/44-46). The applicant claims to have been rehabilitated but there is no evidence that he has attended targeted rehabilitative courses nor has his resolve been tested whilst he is at large in the community. There is also no expert evidence before the Tribunal providing any diagnosis of psychological or other factors predisposing the applicant to abuse methylamphetamine nor does the applicant appear to have a clear plan in place (in the event his visa is returned to him) with respect to ongoing therapy, treatment or other management for his drug addiction. The Tribunal has the applicant's word that he is rehabilitated but little else. b. The offending that led to the February 2020 punishment occurred whilst the applicant was on bail for the charges that ultimately led to the February 2019 punishments. The applicant was either unable or unwilling to stop drug dealing despite facing serious criminal charges for that very conduct. c. Any support that the applicant's family may be willing to provide upon release should be given limited weight in circumstances where their support was not a protective factor in the past. d. Limited weight also should be placed on the applicant's other character references as the support network did not prevent him from offending in the past and there is no compelling evidence to suggest that the same support would be any more effective in the future (LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93]). 78 In response to that contention, the applicant said: Page 11: Risk of Harm to the Australian Community # 2020/6188 Point 34: a As I have previously stated, I have enrolled in courses, I attend narcotic's annonymous meetings. i have 3 years till parole, where i will have more opportunity to further my rehabilitation. By the time I am released into the community, i will have spent 5 years and 2 months in the jail and drug and alcohol free. i strongly suggest that 5 years of drug free living, plus any courses and programmes that i can do in the next 3 years is a very big form of rehabilitation. Being on deportation alert means I do not get the same privileges as normal prisoners, therefore some programmes are not available till the deportation alert is lifted. if this happens, I will be able to work sections 95 which is amongst the community and the courses will be more readily available. As it seems to be a view that the government does not wish to spend money on deportees. c To say that any support that my family offers is of limited weight is both ludicurous and absurd. All my cards are on the table now there and no secrets and everyone is in the picture of what has happened and all are on board and offer100% support. I am sure noone knew the extent of my addiction or even that I had one until it was too late. d Any support I can get, and will get from my family and friends, will be of immense help and for the respondent to say any different is purely speculation. (As in handwritten original.) 79 In an undated handwritten letter from the applicant to the Tribunal member he said: … I realise and accept the seriousness of my crimes and have accepted my punishment. I still have three year till parole and intend to use this time to rehabilitate and better myself. Not only for myself and my family but the greater community also. I have tried to enrol in courses while in medium security but have progressed to minimum security therefore any courses I was waiting on are no longer available so I have applied for all available courses up here. ie Breakaway - Restore - Pathways - etc. … For the past two years I have taken countless random urine test, all of them have been and will forever remain clean. … I have been a regular at narcotics annonymous and while continue to do so. My time spent at meeting has given me a broad insight into the consequences and impact peoples actions and choices have on them and the people around them. Myself included It has oppened my eyes up to the cost and effect drug and alchol has on both the individual and greater community. I have learn and continue to learn useful tools and tips to use in everyday life to combat and deter me from going back down the path I have travelled. My judgment was severly clouded by my meth addiction and being clean and sober for the past two years has put both my life and my loved ones lives and wellbeing in perspective. (As in handwritten original.) 80 In an undated handwritten document entitled 'Reoffending Plan', the applicant said: My plan to prevent my reoffending and my goals for the future. I have been friends with … my co-acused for some time now. We met through our mutual love for drag-racing and speedway. Unfortunatly due to the trouble I found myself in due to my assotion with [my co-accused] I no longer associate with him and will remain this way forever. … I intend to continue to attend Narcotics Anonymous both in and out of jail. Narcotics Anonymous will play a big part of my sobriety because as father Brian says the first step to staying sober is to attend the meetings. I also intend to undertake counselling for my addiction and its causes. I have made all the necessary inquiries and arrangements and have had the one meeting and am awaiting more. … I strongly urge and beleive that after five years of being sober and with the backing and suport of family and friends, the attendace of meetings and counselling I can and will be a positive influence to not only my family but the community in general. I know there will be days where I am tested, but with the tools I have learnt, the experiences lessons and heartache myself and my loved ones have endured this will be enough to keep me from making the mistakes again. I have no doubt whatsoever that I will never be in this position again. (As in handwritten original.)

Other materials before the Tribunal 81 The Tribunal had a significant amount of material relating to the applicant's criminal history behaviour and circumstances while in custody. These included the transcript of the sentencing remarks of Troy DCJ of 8 February 2019 and of Stone DCJ of 28 February 2020. 82 The sentencing remarks indicate that the applicant was a street-level dealer. His dealing was undertaken for commercial gain and to support his methyl-amphetamine addition. His conviction for the trafficking offence was as an accessory, not as the principal offender, but it is evident from the sentencing remarks that the applicant was an eager participant in the principal offender's crime and stood to gain financially from the enterprise. 83 The transcript of the sentencing remarks of Stone DCJ included the following exchanges: STONE DCJ: … I'm struggling to find any mitigating factors in your case, Mr Pokrywka. I am required to impose a sentence commensurate with the seriousness of the offence. In sentencing you, I take account of the nature and gravity of your offending, as well as the statutory maximum penalty in relation to it, the circumstances of the commission of the offence and the aggravating and mitigating factors. I've carefully considered the matters raise in mitigation by Mr Joubert, on your behalf. But as I've said, I've struggled to find any mitigation factors at all, in this case. I've listened carefully to the State's sentencing submissions. In my view, the risk of re-offence by you in a similar way is high, unless you address your methamphetamine use. ACCUSED: Can I speak, your Honour, please? STONE DCJ: Yes. ACCUSED: There is no way in this world I am ever going to touch that stuff or go near it again. STONE DCJ: I'm pleased to hear that. ACCUSED: There is no ways I'm going to re-offend [or] anything like that. And, you know, that's not just to save myself. It's my family. You know, they're sticking by me through all of this. To do it again would just be dumping all over them, not just myself. I promised them I wouldn't do it. STONE DCJ: It would also be dumping all over the community, Mr Pokrywka. ACCUSED: Exactly. STONE DCJ: All right. ACCUSED: I realise what I've done to the community as well, your Honour. And I realise what - I've had a lot of (indistinct) time in jail to realise where I've been. STONE DCJ: All right. I will take that on board. And you seem to be showing some insight, then, into your offending behaviour. So I will give you some credit for that. ACCUSED: Thank you. STONE DCJ: … I conclude that in view of the seriousness of the offence, a term of immediate imprisonment is the only appropriate disposition. I've taken into account the fact that the sentence is to be imposed by me will come on top of the 20 months that you are effectively serving, and I have taken into account, very carefully, the parity issue, of the role that you played in [your co-offender's] network, and I've accepted you are remorseful. I consider that an appropriate term of imprisonment is, in all the circumstances, five year, 10 months. … (Emphasis added.) 84 The materials before the Tribunal included two documents of the Western Australian Department of Justice. The documents were the classification review dated 9 March 2020 and the treatment assessment report dated 21 May 2020 referred to earlier in these reasons. 85 The apparent purpose of the classification review was to assess the applicant for the risk of his escaping custody and, therefore, to classify that risk. The applicant was given a minimum rating. Within the document is a section headed '1.31 Program performance'. That section records the following: Comments: Mr Pokrywka was initially assessed (July 2019) for departmental treatment intervention with the following outcome: General Offending - Not Required - Low Risk/Need. Mr Pokrywka has not been re-assessed for treatment intervention since incurring his additional sentence on 28/02/2020. Classification Review - Outcome Version: 3 Finalised: Finalised Created: 09/03/2020 11:04 BUNBURY REGIONAL PRISON Performed 09/03/2020 11:08 BUNBURY REGIONAL PRISON

Prisoner: [THE APPLICANT] TOMS ID: G0890412 Prison: BUNBURY REGIONAL PRISON Gender: MALE Security Rating: MINIMUM DoB: 02/03/1969 … Score: 5 Rating: MINIMUM Override:

86 The apparent purpose of the treatment assessment report was to also assess the applicant for and recommend, as appropriate, criminogenic programs. That is, programs directed towards causes of criminal behaviour. Within the document is a section headed 'Program Recommendations'. That section records the following: Recommendation 1 Category: Addictions Offending Assessment Outcome: Not Required Barriers/Reasons: Low Risk/need

Summary of Evidence for Program Allocation The Risk of Reoffending-Prison Version (RoR-PV) assessment screening tool was administered. [The applicant] scored 11 and as such is at low risk of reoffending. In accordance with the current pilot process, he will not be further assessed for criminogenic programs. [The applicant] is not recommended for criminogenic programs at this time due to low risk of reoffending. 87 It would appear, from the classification review, that, after the applicant was imprisoned on 8 February 2019 upon his conviction for the offences of possession drugs and stolen or unlawfully obtained property, an initial treatment assessment of the applicant was carried out in July 2019. The outcome of that assessment was that, as of July 2019, treatment was not required or needed and there was a low risk of general offending by the applicant. 88 After the applicant was convicted of possession of a trafficable quantity of methyl-amphetamine with intent to sell or supply on 25 February 2020, the applicant was further assessed for treatment and the treatment assessment report was prepared. Again, the outcome of that assessment was that, as of May 2020, treatment was not required or needed and there was a low risk of general offending by the applicant. 89 The treatment assessment report refers to assessment by administering an assessment screening tool. Otherwise, neither the treatment assessment report nor classification review identify the basis or grounds upon which the authors consider that treatment is not required or needed or the grounds for considering that there is a low risk of general offending by the applicant. As to the screening tool, there was no material before the Tribunal explaining the manner in which the tool was administered, what information was used to administer the tool, what was the nature of the scoring system or the indicators or indicia of the risk of offending that it was designed to assess. 90 Nonetheless, it may be inferred from the treatment assessment report that the author of that document was of the view that there is a low risk of general offending by the applicant and, as a consequence, it was not necessary to specifically treat any causes of his past offending. To that extent, the document provides some evidence that the state of the applicant's drug addiction was not such that the author of the report considered that it required treatment to further reduce the risk of the applicant engaging in general offending. The document may also be described as 'independent evidence' of such rehabilitation. 91 Accordingly, the classification review and treatment assessment report support the applicant's submission that, on the information and evidence before the Tribunal, a 'claim' or 'reason' for considering that the likelihood of the applicant committing further crimes or engaging in other serious conduct was reduced because an employee of the Western Australia Department of Justice had assessed the risk of general offending as low and that specific treatment of his drug addiction was not necessary or required to further reduce the risk of general offending. Put another way, there was evidence or information before the Tribunal to the effect that the applicant's methyl-amphetamine addiction had been rehabilitated to such an extent that specific treatment of that addiction was not necessary or required to further lower the risk of general offending. In that context, the documents provided evidence or a reason for considering that the applicant's methyl-amphetamine addiction had been, at least, partially 'addressed' such that the sentencing remarks of Stone DCJ regarding the state of the applicant's addiction and the risk of the applicant re-offending were not contemporary at the time of the Tribunal's decision or were ameliorated by more recent evidence or information than that upon which Stone DCJ had relied at the time of sentencing. 92 However, that 'claim' or 'reason' was not articulated in the applicant's representations or case before the Tribunal. At most, it is an unarticulated integer of a claim or reason, arising from the available evidence or information, for considering that the risk to the Australian community of the applicant committing further offences or engaging in other serious misconduct was diminished after he was sentenced in February 2020.

The Tribunal's reasons for decision 93 The Tribunal's reasons for decision are 66 pages in length. They commence with a summary of the application, issues, background, legislative framework, Ministerial Direction 79 and the hearing and evidence (at [1] - [29]). From that summary it is evident that an oral hearing was held on 8 December 2020 at which the applicant gave evidence and was cross-examined. His wife and two older daughters also gave evidence and his wife and one daughter was cross-examined. A number of documents were tendered. These included the statements of facts, issues and contentions of the applicant and the Minister and statements of the applicant, his wife and daughters. 94 The Tribunal addressed the question of whether the applicant passed the character test (at [30] - [31]). The Tribunal then considered if there was another reason to revoke cancellation of the applicant's visa by reference to the primary and other considerations in Direction 79. The Tribunal considered: protection of the Australian community (at [32] - [95]); the nature and seriousness of the applicant's conduct (at [33] - [59]) and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (at [60] - [95]). The Tribunal considered the best interest of minor children in Australia (at [96] - [116]); the expectations of the Australian community (at [117] - [125]); and other considerations (at [126] - [145]). The Tribunal set out the weighing of factors exercise undertaken and ultimate decision (at [146] - [156]). The Tribunal's reasons also included a schedule of the applicant's convictions. 95 The Tribunal identified the applicant's claim or case regarding the likelihood of the applicant engaging in further criminal or other serious misconduct and summarised it in the following way (at [72], footnotes omitted.): The Applicant in his SFIC says that he is no risk of reoffending, that he has enrolled in courses, has attended narcotics anonymous and will undertake further rehabilitation in the three further years that he has to serve in prison before being eligible for parole. He says that by the time that he is released he will have spent over five years alcohol and drug free. 96 The Tribunal then set out and summarised parts of the evidence concerning rehabilitation and remorse (at [73] - [85]). The reasons summarise and draw attention to the materials before the Tribunal dealing with rehabilitation referred to in [70] - [80] above as well as other parts of the materials and oral evidence given to the Tribunal. 97 Regarding remorse, the Tribunal understood that the applicant claimed to have accepted his guilt and that he was remorseful. However, the Tribunal did not accept the applicant's claim. At [81] of the reasons the Tribunal summarised and set out the applicant's case and what he had said during the Tribunal hearing as follows (footnotes omitted): The Applicant at the hearing continued with the theme that, while he asserts that he is remorseful for his past criminal behaviour, he, in effect, denies that he committed at least one of the serious drug offences of which he was convicted. His evidence was: ... I've been in two and a-half- well, since then, I've been drug-free and sober, you know, clear-headed, and it makes you realise what you take for granted, which is a bit- you know, in my case, it was a ot, my family and, you know, it's no excuse, but I never even knew about deportation law. I - you know, that doesn't give me a right to even think I can act the way I was. But, you know, I never knew what the consequences were. But, like I said, it doesn't give me the right to behave the way I did, and I - I've got no means to play down the way I acted either, you know. Like, I do dispute my second - the last charge. I - I'm guilty of being there while the crime was being committed and so, therefore, you know, I have to take what's coming to me, you know. … I - I'm guilty of selling small quantities of gear, and I've openly admitted that. I had nothing whatsoever to do with that; I wasn't going to gain from it, monetary or any way. ... I'm guilty by being there when the crime was being - and, yes, you're right, that is not what the court said. 98 At [77], [78] and [82] of the reasons, the Tribunal sets out the applicant's oral evidence regarding rehabilitation of his drug addiction as follows (footnotes omitted): 77. At the hearing the Tribunal asked the Applicant how the Tribunal could be satisfied that the Applicant would not go back to using methylamphetamine. The Applicant's response was: The main - main reason that will keep me away from that and - is - is the damage that it has done to both myself, my family - and - and everything I've - I've lost and I've worked for all my life. I've got involved in that, and, you know, like, everything I worked for I've - I've got nothing to show for it. I'm sort of starting all over again. And then you've got the roll-on effect that - I've - I've for the last two years I've been doing Narcotics Anonymous, and just to see that the damage and - and the ripple effect that if is having on not - not just myself and my family, but the people around me and- and the community in general is just - it's a real eye-opener for me. I get it's a, you know - you - you've got your - when you take it you - you have your blinkers on. You - you - you think nothing is going to happen to you and everything is fine, you know, but- but it's not . ... 78. The Applicant's evidence was that he started using methylamphetamine around 2014. He was living with his wife (they were married in 2010) at the time that he started using methylamphetamine. His evidence was that: ... the incentive to keep me off of it is what it has done to me and what it's doing to me now. You know, like, three years ago if you - if you had said to me, "You're going to be in the court, up in Federal Court fighting over one of the biggest fights of your life to stay in the country with your loved ones and your family and everything you know'', I would have said, "You're joking. No, that's not going to happen". And look at me now. I'm here, you know, on my own, no lawyer, fighting for- for my life. … 82. The Tribunal then asked the Applicant about the courses that he had undertaken while in prison. The Applicant was taken to certificates that had been issued for the Peaceful Pathways basic workshop, conducted by Alternatives to Violence Project WA Inc and the Certificate of Attendance at the Community Transition Program. The Applicant's evidence on those programs was: TRIBUNAL: The Alternatives to Violence project, what was that course? How many sessions or- - -? APPLICANT: It was - it was - it was full - full-day sessions over a period of - I think it was a month or six weeks. I can't recall. It- it wasn't- TRIBUNAL: And what do you think? What did you learn from that? APPLICANT: I - yes, I learnt - learn a bit, not as much as I would have thought I would have learnt from it. I think I - I- I - there was various talks that I did pick up from, you know, just to - you know, confrontation and alternatives to confrontation, you know, just not to - not - not retaliating and talking about - talking things through. …. TRIBUNAL: And what about the community transition program which you did? ... You did that from 7 August to 28 August? APPLICANT: . . . That was - yes, that was - it - it was basically just getting your house in order, teaching you resumes… There was a brief subject on counselling, but most of it was banking, resumes, etcetera, you know? ... TRIBUNAL: So that's actually sort of - that's not addressing any behaviour,· it's really trying to prepare you for reintroduction back into the community, for the ... APPLICANT: Yes, pretty well . ... TRIBUNAL: Have you undertaken any formalised courses, though, addressing alcohol or narcotic addiction? APPLICANT: Not at this stage, no. I intend to before release. I - like I said, I still have three years left and - TRIBUNAL: And tell us about the Narcotics Anonymous you were involved with? APPLICANT: Yes. It's led by a person called Father Brian. We attend every Wednesday and, yes, pretty well talk about our life experiences, and we - - - it's a group session. Sometimes Father Brian comes around during the week, you know. He will come, and he will just call in and sit down and have a chat with you one on one, which is pretty good. He's a good person, and, yes, he teaches a lot. Like, he says the first thing to staying sober is attending the meetings because, you know, as soon as you - he says as soon as you feel like you're going weak and all, whatever, find yourself a meeting and head to that. 99 At [86] of the reasons, the Tribunal identified the respondent's contentions concerning rehabilitation set out at [77] above. The Tribunal then set out the parties' oral contentions regarding remorse in [87] - [89] as follows: 87. In closing submissions the Respondent's counsel also submitted that the Applicant has shown little genuine remorse for or acceptance of responsibility for his criminal behaviour. Counsel submitted that: COUNSEL: The applicant goes through and attempts to downplay the seriousness of each of the offences, which he - or many of the offences which he has been convicted of, blaming it on both the police or, in one instance, his sister for being stupid and calling the police, I think it is. He blames others for crimes that he has pled guilty to, such as stealing timber, for example. And this has continued- this pattern of a lack of insight or remorse has continued through to his most recent offending, in which, despite being found guilty by a jury and the judge noting that he was convinced beyond reasonable doubt that the applicant was involved in a commercial enterprise at the time of riding in the car in September of 2018, that he continues to deny any wrongdoing in respect of that. This lack of insight was noted by the sentencing judge, as noted in the G documents. And we would also note what's referred to as - led by Stone J, Stone DCJ, as a lack of any mitigating factors to the applicant's offending as well. Now, the reason that the lack of insight and lack of remorse is relevant to this tribunal is, as the tribunal will have heard many times before, if a person does not have insight into their offending and shows no remorse for their offending, then they're more likely to reoffend. The applicant does not have any specialist evidence before the tribunal suggesting a different risk of reoffending. It's highly relevant in this respect that the applicant has been imprisoned eight times, and that has not stopped the applicant from offending. The applicant was - - - TRIBUNAL: Well, he has only received three prison sentences, though, hasn't he? COUNSEL: The applicant has received three prison sentences, but has been in Bunbury Prison as a result, as I understand it, of either not paying or choosing not to pay the fines ... 88. In relation to the risk of reoffending, the Applicant submitted in closing that: APPLICANT: I would like to just say that, and I don't know how many times I can say that without fear of repeating myself. But my family and my kids, my wife and my mum, my family, we're a close-knit family, and my only goal when I get out of jail is to spend that time making up for all of the mistakes I've made with them. I believe everyone is entitled to a second chance. I think Australians themselves would say - most Aussies believe that we're entitled to a second chance. When Mr Burgess said that I had shown no remorse, I've been nothing but remorseful in my actions, but I have to give - I'm so remorseful, you know, like, for what I've done. Towards my family, I'm remorseful. And you know, this has been ongoing in my life for two years now, the whole stuff. You know, since I've been in jail for two and a half years, there hasn't been a day where I haven't showed remorse. There isn't a day where I don't feel bad for what I've done and the position I've put my family and myself in; most of all, my kids, you know. My - the people that rely on me. As you heard from my daughter [C], you know, it's been pretty hard for her for the last two years with me not being there. [A, the Applicant's youngest daughter]: she's got out of control, all because they haven't got the father figure there because I've messed up and put them in this position. With the criminal record, I don't know whether I was advised wrong or ill-advised. I was of the idea that I had to give explanations for my criminal record. I was in no way playing my criminal record down. I thought I had to go through my criminal record and make explanations for what I had done. So I was not playing it down and making light of it at all. I realise the seriousness of my position and the consequences of my actions. And that could be that I never see my family again, because they're never going to be able to afford - - TRIBUNAL: I think the point - and it is of concern to the tribunal - the point that Mr Burgess was making is that even in your evidence today, you're still denying that you committed the offences. APPLICANT: I - - - TRIBUNAL: You certainly deny that you committed the offence - - - APPLICANT: The trafficking. TRIBUNAL: Yes. And, you know, you're saying, well, you just went for a ride in a Falcon GTO or whatever it was, and then you - - - APPLICANT: I take full responsibility for my crimes. I was not at any time saying I didn't take responsibility for my crimes. Like, I was guilty, and, as soon as I knew what was going on, I should have got out of that car and had nothing whatsoever to do with it, and - - - TRIBUNAL: Well, but the judge found more than that, didn't he? He found that you were an integral part of Mr Robins' empire. APPLICANT: Because I used in my defence that I was selling drugs. I tried to come clean in my defence, and - - - TRIBUNAL: The police had been listening. They were intercepting the phone calls. APPLICANT: Yes. TRIBUNAL: So the judge is making an informed comment there based on the evidence. 89. The above exchange between the Applicant and the Tribunal continued with the Tribunal explaining that it was bound to accept the sentencing judge's remarks and the verdict. The Applicant continued to maintain that he had simply gone along for a ride in a friend's car and that his only "crime" was not getting out of the car when he realised what was going on. 100 After setting out the evidence and submissions the Tribunal then made the following conclusions concerning the risk of the applicant re-offending (at [90] - [95]). 90. The Tribunal accepts the Respondent's contention that it should be of concern to the Tribunal in assessing the likelihood of the Applicant reoffending and successfully rehabilitating, that he continues to deny criminal involvement in the most serious of his convictions. The Tribunal also agrees with the Respondent's characterisation of the Applicant continuing to downplay, and, in some cases, deny, his past criminal behaviour. 91. The Tribunal accepts that the Applicant wanting to be close to his family, in particular his eight year-old daughter A with his wife and his other daughters, one of whom has significant psychological issues and the other has a child with autism, are factors which would discourage the Applicant from re-offending, however, these factors did not stop him offending in the past. The Tribunal is not satisfied that these same factors would prevent the Applicant from reverting to the type of offending which the Applicant has engaged in in the past. 92. While the Applicant has undertaken some programs while he has been incarcerated, those programs were not targeted at the Applicant's particular issue which, as the Applicant himself identifies, is his methylamphetamine addiction. Unfortunately, that may be a consequence of those sort of programs not being available to the Applicant because of his particular circumstances, but the fact is that, for whatever reason, the Applicant's drug addiction remains largely untreated. In that regard, the Tribunal notes that the Department of Justice Treatment Assessment Report performed on 21 May 2020, applying the Risk of Reoffending - Prison Version assessment tool, assessed the Applicant's risk of general reoffending as low which resulted in the Applicant not being recommended for criminogenic programs. The Tribunal also notes that the Applicant has not tested positive to any banned substances while he has been in prison and that his behaviour while in prison has been good. 93. Notwithstanding the potential presence of factors which might militate against the Applicant reoffending when he is finally released, which, at the earliest, will not be for approximately another three years (assuming he is granted parole), the Tribunal has major concerns. The first is that the Applicant, while claiming remorse and insight into the consequences of his offending, continues to deny any criminal responsibility for the most serious of his offences and even at the hearing, sought to downplay the criminality of his past conduct. The Applicant says that he has remorse for what he has done in the past, however, that, in the Tribunal's view, appears to be more the Applicant being sorry for himself for the situation that he now finds himself in as a result of his repeated and serious offending. 94. The second major concern that the Tribunal has in looking at the likelihood of the Applicant reoffending is that he will basically be going back into the same environment in which he committed his most serious offences. His current plan is to live with his wife and their daughter A, however, he was living, albeit on and off, with his wife when he became addicted to methylamphetamine and committed the crimes for which he is now imprisoned. His relationship with his wife leading up to his arrest was not particularly stable (see [79] above). It also appears that the Applicant has been less than frank with his wife about his drug issues and about his criminal activities. In her evidence the Applicant's wife repeated the Applicant's false assertion that all he did to be convicted of the most serious of his offences, possession of a trafficable quantity of methylamphetamine with intent to sell or supply, was go "for a drive with a bad man" (see [99]). It is also obviously of concern that from 2014 up to the time of the Applicant's arrest in 2018, during which time the Applicant was using and then addicted to methylamphetamine, the Applicant's wife was, according to her, not aware of him even using methylamphetamine let alone being addicted to it. The Applicant's wife also apparently has mental health issues of her own. Accordingly, the Tribunal can have little confidence in the stability of the environment into which the Applicant would be going in three years from now when he is released from prison. 95. The Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as medium to high. This assessment, coupled with the serious nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal behaviour of the type that he has in the past, means that the primary consideration of the protection of the Australian community weighs heavily against the revocation of the cancellation of the visa. 101 In [92] of the Tribunal's reasons specific reference is made to the treatment assessment report. The last footnote of that paragraph is a reference to the classification review.

Consideration 102 The applicant submitted that the Tribunal made two errors. First, the Tribunal misunderstood or failed to have regard to the applicant's claim that he accepted fully his guilt, that he was unambiguously remorseful, and that he had not denied the offending involving him being in a vehicle for the purpose of drug trafficking. Second, the Tribunal failed to take into account or give consideration to an articulated 'claim' relating to rehabilitation and risk of re-offending.

Representations and case regarding remorse 103 The applicant submitted that he had not denied criminal responsibility for his most serious offences or 'sought to downplay the criminality of his past conduct' as the Tribunal had characterised what he had said to the Tribunal. 104 Bearing in mind that the Tribunal's reasons are not to be read with an eye finely attuned to error, the reasons do not reveal any misunderstanding or failure to have regard to the applicant's claim that he accepted his guilt, that he was remorseful or that he had not denied his offending. The passages from the Tribunal's reasons referred to at [97] - [100] indicate that the Tribunal understood the applicant's claims, but did not accept them at face value having regard to what the applicant had said about the trafficking offence during the hearing. 105 The applicant had been convicted of the offence. While he was not the primary offender, he was guilty of and convicted as an accessory, that is, an active participant in the offence. His statements to the Tribunal indicate that he had not completely accepted his guilt for that offence or that he downplayed his participation in that offence. He said he was 'guilty of being there while the crime was being committed'. He said that he took 'full responsibility for [his] crimes. … I was guilty, and, as soon as I knew what was going on, I should have got out of that car and had nothing whatsoever to do with it' (at [81] and [88]). However, neither of those statements is consistent with the extent of the applicant's knowledge of and involvement in the offence before he agreed to get into the vehicle with the co-offender as described in the sentencing remarks of Stone DCJ. 106 The applicant also submitted that the Tribunal had failed to engage with the sentencing remarks of Stone DCJ in which he accepted that the applicant was remorseful and had shown insight into his offending. However, the remarks of Stone DCJ were made in response to submissions the applicant made to Stone DCJ. That Stone DCJ accepted that the applicant was remorseful and had shown some insight as of February 2020, was not necessarily relevant to the Tribunal's consideration of the applicant's submissions and evidence concerning his remorse as of December 2020. The Tribunal relied on or gave more weight to what the applicant had said to the Tribunal member, not what was said to Stone DCJ at another time and in another context. 107 There is no substance in the ground to the extent it is asserted that the Tribunal misunderstood or failed to have regard to the applicant's claim that he accepted his guilt, was remorseful and that he had not denied that he was in a vehicle for the purposes of trafficking.

Representations and case regarding rehabilitation 108 There was a degree of ambiguity in the particulars of the proposed ground, the applicant's written submissions and the applicant's oral submission as to the precise manner in which it is contended that the Tribunal made a jurisdictional error regarding rehabilitation. 109 The proposed ground of review is to the following effect: 1. The Second Respondent failed to consider or misconstrued probative information or evidence which was relevant to its review or otherwise erred in its consideration of the risk to the Australian community. Particulars a. When assessing the likelihood of the Applicant re-offending, the Second Respondent failed to consider, or to give proper consideration to, probative information about the risk of the Applicant reoffending, namely the only professional or expert evidence about risk of reoffending before it being the Treatment Assessment Report of 21 May [2020] from Bunbury Regional Prison that opined the Applicant was a low risk of re-offending and not recommended for criminogenic programs (AB 183); … 110 In the applicant's written submissions, relying on NABE and Dranichnikov, the applicant submitted that the Tribunal was required to correctly construe and consider each claim of the applicant. The applicant submitted that the Tribunal failed to take into account or give consideration to 'an articulated claim in relation to rehabilitation and risk of reoffending' and that the Tribunal pointed to 'insufficient independent evidence' (at [86]). In so doing, it was submitted that the Tribunal failed to give proper consideration to the treatment assessment report of 21 May 2020 which stated the applicant was at 'low risk of reoffending' and therefore 'will not be assessed for criminogenic programs'; and the classification review of 9 March 2020 which indicated 'General offending - Not required - Low risk/Need'. It was submitted that the Tribunal, in essence, simply replicated what the respondent had said in its submissions to the Tribunal and it failed to mention the independent report and review. 111 In the applicant's oral submissions, he submitted, in effect, that the Tribunal failed to take into account an important part of his claim, which was that the Western Australian Department of Justice had assessed that he was at low risk of re-offending and, therefore, no treatment of his methyl-amphetamine addiction was required or needed: t5.23-35, 6.16, 7.39-8.26 and 9.33. At one point, counsel for the applicant accepted that the substance of the applicant's submission was that an integer of his claim before the Tribunal was to the effect that he was rehabilitated at the time of the Tribunal's decision: t10.24-22.4. 112 Later, counsel for the applicant submitted that the applicant was not submitting that he was 'wholly rehabilitated'. The asserted error was characterised, in substance and in reliance on Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294, as a failure to consider a 'very real material consideration and representation': t41.46-42.03. It was submitted that the Tribunal was in error for drawing the conclusion that the applicant's methyl-amphetamine addiction was untreated without taking into account that he had been assessed, in effect, as not requiring treatment. That assessment was submitted to involve a 'misconstruction of the claim, because it leaves out a very important element' that was an integer of the applicant's claim: t43.43-44.04. 113 The various ways in which the applicant expressed the asserted jurisdictional error is, perhaps, a reflection of the difficulty facing the applicant in circumstances where there was no express representation or submission made to the Tribunal dealing with the treatment assessment report or classification review. Further, it is evident from the Tribunal's reasons that the Tribunal was aware of and made reference to the documents in reaching the assessment that the likelihood of the applicant engaging in further criminal or other serious conduct is medium to high. 114 Taking the proposed ground and the applicant's written and oral submission into account, the applicant contends that the Tribunal's jurisdictional error was to fail to consider or properly consider an important integer of his case. Although not expressed in these terms, the substance of applicant's ground of review is that the treatment assessment report and classification review raised a 'claim' or 'reason' supporting a decreased likelihood of the applicant committing further crimes or engaging in other serious misconduct because the applicant's methyl-amphetamine addiction had been rehabilitated to such a degree that there is a low risk of the applicant engaging in general offending. Another way of characterising the asserted error is that the Tribunal failed to actively engage intellectually with the treatment assessment report and classification review as evidence of integers of a 'reason' supporting a decreased likelihood of the applicant committing further crimes or engaging in other serious misconduct. 115 The Tribunal's reasons for decision identify and summarise the representations (or claims) that were central to the applicant's contention that he was not at risk (or substantive risk) of re-offending. The focus of the applicant's express representations was the impact his convictions have had on his family and the significant disincentive that has created for the applicant to relapse into illicit drug use and re-offending. That integer of the applicant's claim is addressed at [98] of the reasons referred to above. 116 The extent to which the applicant's methyl-amphetamine addiction had been rehabilitated was an issue before the Tribunal. It was an issue that the respondent had raised. The Tribunal identified the respondent's contention to the effect that there was insufficient independent evidence before the Tribunal to demonstrate that the applicant 'is rehabilitated'. The Tribunal clearly considered and addressed the extent of the applicant's rehabilitation in [92] of the reasons. The applicant's express response to that issue or contention is set out at [78] above. 117 The applicant's representations and contentions before the Tribunal do not contain an express claim that his drug addiction had been substantially rehabilitated. Thus, the real questions are whether an unarticulated 'claim' of substantive rehabilitation 'clearly emerges' from the treatment assessment report and classification review, the Tribunal was under a statutory duty to consider that claim when dealing the issue of rehabilitation, and, if so, whether the Tribunal failed to consider that claim (actively engage intellectually with the material, evidence or claim). 118 It is not always straightforward to determine if an unarticulated claim is raised 'squarely' on the material available to the Tribunal and, therefore, if the Tribunal has a statutory duty to consider that claim. Likewise, it is not always easy to determine whether in the Tribunal's consideration of the materials the reasons fall 'on the wrong side of the line'. As was said in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89], it is 'a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure tone and content of the decision-maker's reasons'. 119 In cases such as the present one, there are also two important aspects of the principles referred to earlier in these reasons that are relevant. First, the fact of consideration of the documents in question is important, not necessarily the manner in which the nature of the consideration is (or not) expressed. Second, the nature and degree of the consideration required depends on the centrality of the matter to the issues that arise in the review and the extent to which the unarticulated claim 'clearly emerges' from the materials before the Tribunal. 120 Having regard to the principles, the following points about the representations and materials before the Tribunal and the summary of the representations and materials in the reasons of the Tribunal are significant. (1) The applicant's evidence was to the effect that he had been an addict for many years. (2) There was material before the Tribunal to the effect that unless the applicant addressed his methyl-amphetamine use, he was at high risk of re-offending. (3) There was evidence before the Tribunal to the effect that applicant had attended narcotics anonymous while in prison. (4) There was also evidence to the effect that the applicant had not undertaken any specific drug rehabilitation programs to address his methyl-amphetamine addiction. Further, that such courses may not have been available to him because his visa had been cancelled. (5) There was no express representation made to the effect that the applicant was no longer an addict or no longer considered to be an addict if released into the community where he would be able to access illicit drugs. (6) There is no reference in the Tribunal's reasons of any oral evidence specifically dealing with rehabilitation and the manner in which the applicant's behaviour had been or would be modified to prevent a relapse into drug use upon his release from prison. However, the applicant had made a statement to the effect that he would not 'touch that stuff or go near it again' which is referred to in the Tribunal's reasons. (7) In substance, in the representations and other materials in support of the review of his application before the Tribunal, the applicant made the representation (claim) that there was no risk of him re-offending. (8) The applicant's application form, personal circumstances form, statement of facts, issues and contentions, and other materials relevantly placed emphasis on the impact the convictions for his offending had had on the applicant and his family. Emphasis was placed on the desire to change the direction of his life and to be a good husband, father and grandfather. In that context, the applicant represented that there was no risk of him re-offending. Implicitly, the applicant represented that these matters provided a strong incentive that would to prevent him from relapsing into the drug use and addiction that had been the evident cause of his most serious and recent offences. None of these documents suggested that the applicant's drug addiction had been addressed, successfully treated or rehabilitated or that the applicant had a plan of action for implementation upon his release into the community aimed at changing the behaviours, environment or influences that had drawn him into drug use and addiction in the past. (9) The Tribunal's reasons deal with and address the absence of evidence of the applicant having undertaken any treatment programs directed to his methyl-amphetamine addiction. The Tribunal reasons address his attendance at narcotics anonymous. The Tribunal concluded that the applicant's drug addiction remains largely untreated. In that context, the Tribunal noted and made reference to the treatment assessment report and classification review. The Tribunal's reasons also deal with no apparent plan to change the behaviours, environment or influences that had been present at the time he became addicted to methyl-amphetamine and committed the most serious of his crimes. (10) As noted earlier in these reasons, the treatment assessment report and classification review, contain evidence to the effect that a person from the Western Australian Department of Justice had assessed the applicant for treatment intervention and had formed the view that no intervention was required or needed and that there was a low risk of general offending by the applicant. However, neither the treatment assessment report nor classification review contain any information about the factual basis or grounds for the assessment that the applicant is at low risk or general offending or about the manner in which his drug addiction has been treated or rehabilitated, if at all. 121 In light of all the above, the brief references to the treatment assessment report and classification review in the Tribunal's reasons are understandable. A 'claim' to the effect that the applicant's methyl-amphetamine addiction had been substantially rehabilitated such that there was little risk of him re-offending was not a central (or any) part of the applicant's articulated claim before the Tribunal. To the extent substantive rehabilitation is to be inferred from the treatment assessment report and classification review, it is not sufficient that a claim 'might' be seen to arise on the materials: NABE at [68]. The unarticulated claim must be one that 'clearly emerges', was 'squarely raised' or was 'plain' on the materials before the Tribunal. A 'claim' that was 'apparent on the face of the material before the Tribunal' and that does not 'depend for its exposure on constructive or creative activity by the Tribunal': NABE at [58] and [68]. 122 Taking into account that the applicant was not represented before the Tribunal and that part of his representations included information that he was not able to enrol in certain programs, a 'claim' that the applicant was substantively rehabilitated was apparent on the face of the treatment assessment report. The Tribunal's reasons do not expressly engage with that 'claim'. However, this is an example where the distinction between a 'claim' and 'evidence' is not particularly useful. 123 As noted above, the extent to which the applicant's methyl-amphetamine addiction had been rehabilitated was an issue that was raised before the Tribunal and the Tribunal considered that issue. The Tribunal found on the material before it that the applicant's addiction remained largely untreated. In reaching that conclusion, the Tribunal considered and took into account the treatment assessment report and that the Western Australian Department of Justice had assessed the applicant's risk of general re-offending as low 'which resulted in the Applicant not being recommended for criminogenic programs'. The Tribunal also considered and took it into account that he had not tested positively for any banned substance while he has been in prison and that his behaviour in prison had been good. In noting that the applicant's behaviour in prison was good the Tribunal referred to the classification review. The classification review, in turn, referred to an initial assessment in July 2019 for treatment intervention and an assessment, that at the time, the applicant was of a low risk of general offending and there was no need or requirement for intervention. 124 It is implicit in the Tribunal's conclusion that the applicant's methyl-amphetamine addiction remained largely untreated and that the Tribunal considered that there was a need or a continuing need for the applicant's addiction to be treated. It is not evident that the Tribunal specifically considered whether the applicant's addiction was sufficiently rehabilitated such that treatment was not required or needed. However, the Tribunal made reference to the treatment assessment report, that it records the risk of general offending as low and that the applicant was not recommended for criminogenic programs. Therefore, it is implicit that the Tribunal considered these materials and the extent to which they are evidence of rehabilitation of the applicant's addiction. 125 In a context in which there had been no focus on the treatment assessment report or classification review, the passing reference to these documents in a paragraph dealing with the extent to which there was evidence that the applicant had been treated and was rehabilitated does not give rise to an inference that the Tribunal failed to actively engage intellectually with the documents or the evidence within them. The Tribunal summarised the effect of the treatment assessment report. Likewise, an inference does not arise that the Tribunal failed to understand that the treatment assessment report suggests that the applicant's addiction does not require treatment to further reduce the risk of general offending. The paragraph highlights the low risk of offending and resulting non-recommendation for criminogenic programs. In the same paragraph, the Tribunal also deals with evidence of the applicant's abstinence and good behaviour while in prison. That is, the Tribunal alludes to evidence of some rehabilitation from drug addiction in the absence of formal treatment. 126 After considering the material relating to the applicant's treatment for his methyl-amphetamine addiction, the Tribunal then observed that '[n]otwithstanding the potential presence of factors which might militate against the Applicant reoffending when he is finally released, which, at the earliest, will not be for approximately another three years (assuming he is granted parole), the Tribunal has major concerns.' The Tribunal then went on to explain two major concerns: (1) an absence of true remorse; and (2) an absence of any change of or plan to change the environment in which is offending took place upon his release. 127 Ultimately, because of those concerns, the Tribunal assessed the likelihood of the applicant engaging in further criminal or other serious misconduct as medium to high. In so doing, the Tribunal implicitly attributed greater weight to other evidence, materials or factors than the views about the risk of the applicant re-offending expressed by the authors of the treatment assessment report and classification review. 128 The relevant issue raised in the treatment assessment report and classification review was the extent to which the applicant's addiction had been rehabilitated. The Tribunal dealt with that issue. The Tribunal accepted that there were factors that militated against the applicant re-offending when he is released, the factors included the treatment assessment report, absence of evidence of drug use while in prison, and good behaviour while in prison. However, these factors were not sufficient to overcome the two major concerns that the Tribunal expressed about the risk of the applicant re-offending. 129 While there may be doubt about the correctness of the Tribunal's assessment of the materials before it, it is not open for this Court to review and correct errors in the Tribunal's fact finding. Otherwise, the applicant has not demonstrated, on the balance of probabilities, that the Tribunal failed to consider or properly consider the treatment assessment report or classification review or in any way misconstrued or misunderstood the significance or importance of those documents to the issue of the applicant's rehabilitation and propensity to re-offend upon his release.

Conclusion 130 The applicant has not demonstrated on the balance of probabilities that the Tribunal made the errors asserted in his application for judicial review and submissions to the Court. Accordingly, the application must be dismissed. I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.