Applicant's submissions
71 As with Ground One, the Applicant advanced four separate, but interrelated, propositions in support of Ground Two.
(1) When evaluating the risk that the Applicant would pose to the Australian community, the Tribunal is required to evaluate the risk of recidivism. Part of that evaluation involves a determination about the likely future criminal behaviour of the Applicant.
(2) The task of assessing the risk of recidivism is notoriously complex. It involves an analytical process where the nature and circumstances of past offending are integral and where a range of present circumstances may bear on the likelihood of past offending being repeated: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595.
(3) The SAPOL records contain untested and uncorroborated hearsay evidence of alleged behaviour and, importantly, are not findings of fact made by a court.
(4) It was procedurally unfair and/or legally unreasonable to rely on the SAPOL records in circumstances where the prejudicial effect of relying on untested and uncorroborated records outweighed any probative value of the evidence.
72 As a matter of principle, the Applicant conceded that there is no general prohibition on an administrative decision-maker, such as the Tribunal, finding that a person has engaged in conduct that constitutes a criminal offence as a step on the road to exercising a statutory power: see, eg, Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
73 However, the Applicant submitted that there are principles which bear upon the quality of evidence required to support findings about the nature of criminality and the likelihood of a person re-offending. I will refer to those authorities below.
74 In Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; 73 FCR 187, the Full Court (Burchett, Branson and Tamberlin JJ) considered a previous iteration of s 501 of the Act, which required the Minister to have regard to the person's "past criminal conduct". The Full Court held as follows (at 194):
At the outset, we should say that we agree with his Honour that the words of the statute "past criminal conduct" cannot be read down to refer only to past conduct the subject of criminal convictions…It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material…
[Emphasis added]
The need for caution before reaching a view that criminal conduct has occurred, absent a prosecution and conviction, was noted with approval by this Court in Brown v Minister for Immigration and Citizenship [2009] FCA 1098; 112 ALD 67 at [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [128] (Nicholas J, with whom Moore and Rares JJ agreed).
75 The Applicant also referred to a more recent decision, FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754. In FTZK, French CJ and Gageler J held (at [16]) that "meticulous investigation and solid grounds" are required to make findings about criminal conduct in the migration context and "the decision-maker must pay close attention to the probative relevance of the material" before him or her. Similarly, the Applicant directed the Court's attention to the observations of McHugh J in Papakosmas v R [1999] HCA 37; 196 CLR 297 at [84], where his Honour observed that the rationale for the hearsay rule includes the "potential unreliability [of hearsay evidence] and the threat that hearsay poses to procedural fairness".
76 Of particular importance to this application is a decision of the Full Court in Splendido. In that decision, Mortimer J (with whom Moshinsky J agreed) upheld the primary judge's conclusion that the material relied upon by the Minister, which included records of convictions, was simply too vague to ground, rationally, findings about the applicant's future behaviour (see especially at [41] and [50]). Her Honour added at [52]:
… Having decided to place at the forefront of his reasoning a finding that Mr Splendido posed an unacceptable risk to the Australian community because of the likelihood he would re-offend, that finding was required to be based on probative material, and in my respectful opinion the primary judge was correct to find there was none. Instead, the finding involved no more than speculation on the part of the Assistant Minister.
77 The Applicant also referred to the cautionary remarks in Splendido in relation to recidivism analysis (at [72], citing RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 at [16]-[17] (Maxwell P and Weinberg JA)) and the limitations of tendency reasoning as a form of deductive logic (at [73], citing Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [70]-[72] (Gageler J)). Such remarks culminate in the observations at [77]-[78]:
The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, as Hughes and the authorities before it demonstrate. In the sentencing context, or in a context of any further exercise of power to detain a person, where a court is required to address a person's risk of re-offending in the future, the complexity of that analytical process and the difficulty of judges undertaking that task themselves is judicially acknowledged, as the observations in RJE demonstrate.
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending. In these processes, a court acts on more than the bare historical fact of when and where a person committed offences and the legal description of those offences. Otherwise, the prejudicial and impermissible kind of reasoning to which Gageler J referred in Hughes is what can dominate any reasoning process.
[Emphasis added]
78 The Applicant also referred to a decision of Kenny J in CVN17 v Minister for Immigration and Border Protection [2019] FCA 13; 163 ALD 101. In CVN17, her Honour explained the relevant evidentiary material at [98]:
Further, the alleged incidents of "Burglary with breaking" and "Common Assault" were never contested before a court: no plea was ever entered, no witnesses were called, and no conviction was recorded. The material on which the Tribunal relied in relation to these incidents was apparently drawn from police service files from 2003…
79 Her Honour added at [99]-[100] that:
I reject the Minister's submission that the applicant's conduct as a nine-year-old child was not a significant part of the Tribunal's decision. This argument is difficult to reconcile with the prominence of the references to this conduct in the Tribunal's reasons, including in the Tribunal's conclusion. As already stated, by commencing its consideration of the escalating pattern of seriousness of offending at a time when the applicant could not, by law, be attributed with criminal responsibility, the Tribunal focussed on a consideration that was irrelevant to that supposed pattern. Evidence of the conduct of the applicant at nine years of age was, for the same reason, incapable of providing a logical basis for the Tribunal's statement that the applicant's "history of offending" began at this young age. Yet the Tribunal's conclusion at [120] indicated that the identification of such a pattern and history of offending was an important element in the Tribunal's decision-making. This is borne out by the fact that such an approach was in apparent conformity with Direction No 65: see [86]-[89] above.
This does not mean that, on review of a decision not to revoke a visa cancellation decision under s 501CA(4)(b)(ii), the Tribunal cannot take into account evidence about a former visa holder's conduct as a child. Rather, it is to say no more than that evidence of that conduct must have some relevance to an issue that properly arises in the course of the Tribunal's decision-making and that there must be some logical connection with the inferences or conclusions that the Tribunal then draws from that evidence. It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.
[Emphasis added]
80 Then, at [102], her Honour concluded:
For the reasons stated, [this] is not only of sufficient merit to justify the extension of time sought by the applicant, it also discloses jurisdictional error.
81 The Applicant relied on CVN17 as supporting the contention that the Tribunal erred, in this instance, by referring to contemporaneous police records that were not formal police summaries and were not matters in relation to which the Applicant was convicted. In this respect, the Applicant relied on the well understood metaphor that by considering the SAPOL records, there would be a 'poisoning of the well' which infected the Tribunal's reasoning.
82 This is because, as I have explained above, the Tribunal regarded the risk of future harm to the community as unacceptable, assuming the Applicant was permitted to remain in Australia. It was therefore the Applicant's contention that the Tribunal reached this view based, at least in part, on the information contained in the SAPOL records.
83 Having regard to the principles set out above, the Applicant submitted that relying on the SAPOL records in this way was procedurally unfair and, further, or alternatively, it was legally unreasonable. The Applicant contended it was legally unreasonable because the SAPOL records were prejudicial to the Applicant and, in the context of assessing the risk of recidivism being a notoriously difficult task, that exercise should not be founded upon material which has a tenuous evidentiary foundation. Further, the Applicant submitted it was procedurally unfair because he did not have the opportunity to test the veracity of the SAPOL records and, once considered by the Tribunal, that information might lead to the nature and seriousness of the Applicant's offending being conflated due to cognitive biases.
84 In short, the Applicant's submission was that that the Tribunal erred by reaching a conclusion about the likelihood of future criminality based in part on uncorroborated police accounts, where the probative value of such evidence was substantially outweighed by the fact that the Applicant had never been given an opportunity to forensically test the underlying assertions contained in the SAPOL records.
85 The Applicant accepted that the underlying information that was reported in the SAPOL records may have been useful to the Tribunal but not in the form that the Tribunal received that information. The Applicant also acknowledged that it was conceivably relevant to the determination of future criminality to hear evidence from police officers who had interacted with the Applicant and who had decided to charge him or not charge him, as the case may be. However, the Applicant submitted that to simply rely on the accounts of those police officers, contained in untested and uncorroborated reports, is legally unreasonable.