Rodchompoo v Minister for Home Affairs

The question of adjournment of the hearing of the appeal 23 When the appeal was called on for hearing, the appellant, who was in immigration detention, appeared as a self-represented party. While he had been represented by pro bono counsel in the final hearing before the primary judge, in this proceeding he has been self-represented at all material times (as earlier explained). 24 The appellant immediately indicated that he required an adjournment in order to appoint a lawyer, either a private lawyer briefed with the financial assistance of his family, or a pro bono lawyer engaged with the assistance of the Court. 25 He also said he required an interpreter. 26 The application for an adjournment was not supported by the Minister. 27 The appellant said that he had only had the appeal papers since early November. 28 Following a brief adjournment to enable the Court to consider the adjournment application, the Court refused the application, but did so on the basis that an interpreter, in the Thai language, could urgently be made available to assist the appellant in Court, if he required such assistance. 29 The Court was reluctant to grant an adjournment for a number of reasons. First, the appellant had been self-represented since he initially lodged the notice of appeal and had had an adequate period of time in which to engage a lawyer privately or pro bono. From what he told the Court, there was no probability that his family would assist him to engage a private lawyer. In the Court's assessment, this was not a case in which the issue of a pro bono certificate was merited under the Federal Court Rules 2011 (Cth). 30 It was also apparent to the Court that in relation to the relevant grounds of appeal, the Minister would act as a model litigant and fully address the question of any arguable error in the reasoning of the primary judge. 31 When the matter came back on for hearing, in the presence of the Thai interpreter, the appellant made it bluntly clear that he did not need her to interpret; that his English was more than adequate; and that he would proceed without the interpreter's assistance. The Court accepted the appellant's position but indicated to him that should he, in the course of the hearing, require the assistance of the interpreter he should immediately so indicate. The interpreter remained present throughout the course of the hearing, but was not required at any stage. The appellant's command of the English language was not an issue. 32 It might also be noted that at the time the appellant initially sought judicial review of the Tribunal's decision (in the Federal Circuit Court of Australia) he indicated on a relevant court form that he did not need the assistance of an interpreter. 33 As the Minister additionally pointed out, and the materials before the Court indicate, the appellant, as a self-represented party in the Tribunal, and at earlier stages of the hearing before the primary judge in the proceeding below, was self-represented and spoke for himself and gave evidence quite fluently in English. As noted at the outset, he has been living in Australia since the age of 13. 34 In these circumstances, the adjournment request was refused and the hearing proceeded.

The decision of the delegate 35 Before the delegate, and before the Tribunal too, was the extensive criminal record of the appellant, comprising some 67 convictions in the period between April 1999 and September 2015. It included convictions for drug offences, disorderly conduct, criminal damage or destruction of property, breach of bail, aggravated assault with intent to rob, unlawful wounding and other offences. 36 Before the delegate, the appellant accepted that he did not pass the character test and made representations as to other reasons why the cancellation decision should be revoked, which included the following. That he has learnt his lesson and has desisted from abusing drugs and alcohol and will not reoffend. That his immediate family is in Australia and are willing to assist him in his efforts to rehabilitate, and he feels he has much more to prove to them and fears he will lose them if he is sent back to Thailand. That he has lived in Australia for 23 years and regards it as his home. That he would not be able to live independently in Thailand as he has no accommodation there, does not know anyone in Thailand and does not write or speak the Thai language. 37 The delegate considered the guidelines provided in Direction 65, made an assessment of the representations from the appellant, made an assessment against the character test, made an assessment of whether there was another reason why the mandatory visa cancellation decision should be revoked and considered all other evidence available, including that provided by the appellant. 38 In the result, in refusing to revoke the visa cancellation decision, the delegate gave significant weight to the serious nature of the crimes committed by the appellant and particularly mentioned that of unlawful wounding and aggravated assault with intent to rob, which the delegate said were of a violent nature. For those reasons the delegate said the appellant should expect to forfeit the privilege of remaining in Australia. 39 Additionally, the delegate found that the Australian community could be exposed to great harm, should the appellant reoffend in a similar fashion and the delegate could not rule out the possibility of further offending by the appellant. The delegate said the Australian community should not have to accept any risk of further harm. 40 The delegate was also cognisant that where great harm could be inflicted on the Australian community, other strong countervailing considerations may be insufficient to revoke the decision to cancel the visa, even applying a higher tolerance of risk of reoffending by the appellant because he had lived in Australia for most of his life. 41 The delegate considered the ties the appellant had formed by having lived in Australia for over 23 years, his contribution to the Australian community and the consequences of the decision for the appellant's immediate family in Australia. 42 Ultimately, the delegate considered the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed all countervailing considerations.

The Tribunal's decision 43 As noted above, the Tribunal affirmed the decision of the delegate. 44 The Tribunal, like the delegate, found that the appellant could not satisfy the character test so the question was whether there was "another reason" why the original decision should be revoked. 45 Like the delegate, the Tribunal also had regard to Direction 65. 46 In that regard, the Tribunal in its reasons for decision noted that the primary considerations were: Protection of the Australian community, which required the nature and seriousness of the person's conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct, to be considered. The best interests of minor children in Australia affected by the decision. Expectations of the Australian community. 47 The Tribunal also noted that by Direction 65 other considerations to which it should have regard included: International non-refoulement obligations. Strength, nature and duration of ties. Impact on Australian business interests. Impact on victims. Extent of impediments if removed. 48 Under headings reflective of those primary and other considerations, the Tribunal considered the representations of the appellant and the evidence before it, before affirming the delegate's decision. 49 The Tribunal set out in a table the various offences of which the appellant had been convicted and the sentences or penalties imposed on the appellant for such offending. 50 The Tribunal considered that the offences were serious offences of the type identified in Direction 65. 51 It drew particular attention to the drug offences, property offences and convictions for supply. It also noted the convictions for violent offences, providing false reports to police and offences of dishonesty. 52 The Tribunal had regard as well to sentencing remarks in relation to the following offences: unlawful wounding on 19 January 2004; false report to the police on 6 April 2005; convictions for breach of order, knowingly obtain payment only part payable and obtain benefit not payable, of 25 July 2006; the "aggravated assault" conviction of 19 April 2012; and the possession offence of 8 September 2015. 53 The Tribunal said that taking into account the nature, frequency and seriousness of the appellant's offences, the comments of the sentencing magistrates and judges, and the appellant's deception of immigration authorities and disregard of formal warnings given by the Department of Home Affairs concerning the possibility of the cancellation of his visa, the offences weighed in favour of the cancellation and did so to a significant degree. 54 Ultimately, the Tribunal concluded, having considered and weighed all of the primary considerations and the other relevant considerations, that the correct and preferable decision was that the mandatory cancellation of the appellant's visa should not be revoked. The Tribunal said, at [65] of its decision record: The Australian community is entitled to be protected from the very high risk that Mr Rodchompoo will continue to commit serious offences if he is allowed to remain in Australia, this risk is unacceptable and is not outweighed by considerations favourable to Mr Rodchompoo.

The primary judge's decision 55 In the proceeding before the primary judge, as explained above, the appellant was initially self-represented but, following an adjournment of the hearing, was represented by counsel at a re-opening of the hearing. By an amended originating application, obviously prepared with the benefit of his pro bono lawyers, the appellant sought judicial review of the Tribunal's decision on the following grounds: 1. The Tribunal had no jurisdiction to make its decision on 4 November 2016 because: (aa) The adoption by the Tribunal of all the arguments and conclusions in the Respondents' Statement of Facts and Contentions filed and dated 19 September 2016, without attribution, raises a concern as to whether there has been: (i) a failure by the Tribunal to genuinely consider all the primary and other relevant considerations; and (ii) a constructive failure on the part of the Tribunal to discharge its statutory role, as required by the First Respondent's Direction No 65 'Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA' issued on 22 December 2014, in accordance with the First Respondent's powers under s 499(1) of the Migration Act. (a) The Tribunal failed to make reasonable inquiries into factual matters that were readily available and of critical significance to the decision. (b) The Tribunal failed to take into account mandatory relevant considerations - namely: (i) the extent of any impediments that the applicant may face if removed from Australia to Thailand - specifically, the medical and economic support available to the applicant; and (ii) the applicant's rehabilitation treatment and the effect of that on the likelihood of the applicant not engaging in further criminal or other serious conduct. (c) The Tribunal did not comply with the terms of Ministerial Direction No 65 when it purported to consider the impact on victims of its decision not to revoke, despite there being no evidence to support its finding. (d) The Tribunal's Decision was so manifestly unreasonable or irrational that no sensible Tribunal acting reasonably could have made it. Taking into consideration the history of the applicant, his mental health and drug dependency issues, and the lack of resources available to assist him should he be deported to Thailand, the Tribunal's Decision was manifestly unreasonable or irrational. 56 The primary judge discussed ground 1(aa) at [45]-[70] of his reasons for judgment. 57 The judge accepted that in some circumstances a decision-maker may be found not to have discharged its statutory duty if the reasons it gives for a decision suggest that the decision-maker failed properly to evaluate and analyse the evidence before it, before making the decision. His Honour cited LVR (WA) Pty Ltd and Another v Administrative Appeals Tribunal and Another (2012) 203 FCR 166; [2012] FCAFC 90 and Juneja and Anor v Tax Practitioners Board (2017) 72 AAR 407; [2017] FCA 908, identifying the legal principles relevant to this ground of appeal. 58 The primary judge had regard, in particular, to [37], [43], [54], [62] and [63] of the Tribunal's decision record in coming to a conclusion that the Tribunal independently considered the matters put before it, even though the Tribunal preferred the Minister's contentions in relation to the evidence given by the appellant. 59 At [70] of his reasons, the primary judge stated: It is easy to be dismissive about a summary statement that the Tribunal had 'considered and weighed all the primary considerations and other relevant considerations', but the Tribunal has a sworn duty to carry out its task properly. Its reasons should be examined without an eye keenly attuned to error. In a case such as the present, it is not unreasonable to take such statements by the Tribunal at face value. Were the remaining grounds of review to reveal errors or omissions in the task carried out by the Tribunal, such revelation may support a suggestion that the Tribunal had failed to exercise its jurisdiction by failing to properly consider the matters it was required to consider, but in the circumstances set out above and absent a favourable answer for Mr Rodchompoo on the remaining grounds, I would not consider that ground 1(aa) could be established. 60 As to ground 1(a), the primary judge dealt with this at [71]-[87]. 61 At [83], the primary judge noted, by reference to authority, that an obligation to make further inquiry would only arise in the following circumstances: (1) the inquiry the Tribunal failed to make must be obvious; (2) the inquiry must concern a critical fact, the existence of which is easily ascertained; and (3) the inquiry must supply a sufficient link to the outcome as to constitute a failure to review. 62 His Honour added, at [83], that the fact that it may have been reasonable to make an inquiry does not suggest that a lack of such an inquiry amounts to jurisdictional error. In particular, he said that, in relation to the failure to inquire into the extent of impediments, into the plea of guilty and other "obvious" matters, these were not easily ascertainable facts. Rather, they were inquiries into matters which would make the appellant's application for him. His Honour said there was no duty to make such inquiries, citing Toura v Minister for Immigration and Border Protection [2017] FCA 1405 at [13]. 63 The primary judge specifically rejected: the appellant's suggestion that the impediments in obtaining healthcare in Thailand was an easily ascertainable fact; and the "real reason" the appellant pleaded guilty to charges of possession with intent to supply drugs was an easily ascertainable fact. 64 His Honour also considered that the Minister was correct in pointing out that the merits review regime for decisions to not revoke a cancellation of visa decision differs from merits review in the migration division of the Tribunal and noted that the appellant had specifically been directed to file and serve any further evidence on which he intended to rely. 65 As to ground 1(b), the primary judge dealt with this at [88]-[93]. 66 He noted that the appellant again relied on the failure of the Tribunal to take into account the extent of any impediments he may face if removed from Australia to Thailand and also the failure to take into account his rehabilitation treatment. 67 At [91] of his reasons, the primary judge said that the complaints concerning the impediment issue failed as it was for the appellant to present his submissions and evidence consistently with the directions made by the Tribunal to that effect. 68 In relation to rehabilitation, his complaint failed because if he sought to advance a contrary position on rehabilitation - that is, that he was undergoing it, that it was effective and, therefore, it was likely to reduce the chance of him engaging in further criminal conduct - it was incumbent on him to adduce that evidence and make those arguments. 69 As to ground 1(c), the primary judge dealt with this at [94]-[102]. 70 The judge accepted that non-compliance with the terms of Direction 65 was capable of resulting in jurisdictional error. 71 The judgment specifically addressed the appellant's proposition that it was not open to the Tribunal to base its decision on the assertion that the appellant's removal from Australia would diminish the harm flowing from his conduct. His Honour noted that that submission was coupled with an earlier submission that it was inaccurate to say that there was a "history" of convictions of supplying drugs on the evidence before the Tribunal. 72 His Honour ultimately rejected the ground. He noted that the argument required the Tribunal to go behind the criminal convictions. His Honour accepted there was no specific victim evidence. However, he found it was not true to say there was no history of possession of drugs with intent to sell. 73 As to ground 1(d), the primary judge dealt with that at [103]-[109] and, having regard to the evidence, found that the appellant fell well short of establishing it. His Honour said that the authorities caution that legal unreasonableness sets a "very high bar". He said that even emphatic disagreement would not be sufficient to show extreme illogicality. The judge accepted the Minister's submissions that "the Tribunal's reasons constitute an orthodox application of established principle to the primary and other considerations based on the evidence before it". 74 The primary judge also dealt with a further matter that was raised in reply, which concerned the fact that the appellant had not been legally represented before the Tribunal, although he spoke English and was not illiterate. Ultimately, the primary judge did not accept that the appellant's circumstances involved a lack of procedural fairness. 75 For all these reasons, the judge dismissed the judicial review application.

Did the primary judge err by not concluding that the "assistant Minister"/Tribunal was "required" to make "an assessment as to whether what was put forward had factual merit" after the case Falzon S31/2017 was unsuccessful? 76 This question arises from ground 1(a) of the current appeal, which ground of appeal is rather confusing. 77 The reference to the "Assistant Minister" in these grounds of appeal generally suggests that the grounds are a template form of grounds of appeal not designed to grapple with the particular grounds advanced and dismissed in the judicial review proceedings before the primary judge. 78 It is apparent that the Tribunal gave close consideration to all of the issues raised in the hearing before it and the primary judge did not err in his consideration of those relevant grounds of appeal. 79 In his judgment, the primary judge indicated that following the initial hearing of the application on 30 May 2017, delivery of judgment was postponed until the outcome of an application in the High Court by Mr Falzon, to the effect that s 501(3A) of the Act was invalid because it purported to confer the judicial power of the Commonwealth on the Minister in a manner contrary to Ch III of the Constitution. His Honour, in his reasons, went on to explain that a judgment in the matter before him had been scheduled for delivery on 15 February 2018, after the delivery of Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61; [2018] HCA 2 in the High Court. On the morning of that day, the Court was notified that freshly appointed solicitors for the appellant sought a deferral so they could make submissions in relation to possible further arguments. The judge then agreed and on 21 February 2018, an application for deferral of judgment until 21 March 2018 was filed with the support of an affidavit. The judge ultimately agreed, in the interests of justice, to defer judgment to enable further submissions to be made. That ultimately led to the filing of the further amended originating application filed 27 March 2018. 80 Before amendments were made, the proceeding before the primary judge was advanced on only three short grounds, namely: 1 I HAVE NO FAMILY IN THAILAND 2 I HAVE NO SUPPORT WHATSOEVER 3 I HAVE BEEN IN AUSTRALIA 23 YEARS ALL OF MY FAMILY ARE IN AUSTRALIA AND ALL OF MY LOVED ONES 81 The primary judge, at [23] of his reasons, explained how, at the hearing on 30 May 2017, the appellant effectively advanced a plea in mitigation, but was unable to advance any grounds of jurisdictional error. 82 However, with the assistance of pro bono counsel, he advanced relevant grounds of appeal in the 27 March 2018 amended application. Each of these grounds was closely considered by the primary judge. 83 Ground 1(a) fails.

Did the primary judge err by not identifying a range of claims that the "assistant Minister"/Tribunal was required to take into account after the amended application was filed on 12 February 2018? 84 This question reflects ground 1(b) of the current appeal. 85 Again, there is the reference to the "Assistant Minister". Assuming that that is a reference to the Tribunal, the ground is still confusing. 86 The reference to the amended application of 12 February 2018 may be taken to be a reference to the amended originating application for review dated and filed 12 March 2018, or the further amended originating application for review dated and filed 27 March 2018, in relation to which orders appear to have been made on 27 March 2018 by the primary judge, allowing the amendment. 87 It appears that pro bono solicitors and counsel began acting for the appellant during February 2018 and were responsible for affidavits filed on behalf of the appellant on 21 February 2018 and 27 March 2018, as well as 6 March 2018. 88 So far as the substance of this ground is concerned, plainly from the account provided above, the primary judge had close regard to the particular grounds of judicial review advanced before him in the amended application. There is nothing to suggest that he failed to consider "a range of claims" advanced. He dealt with each and every ground of judicial review with some considerable care before dismissing the judicial review application. 89 There plainly is no ground for a complaint that the primary judge did not identify a range of claims that the Tribunal was required to take into account or that the Court was required to take into account after the amended application was filed (whether it be 12 February 2018, 12 March 2018 or 27 March 2018).

Did the primary judge err by failing to find that on the evidence it could be established that the "assistant Minister"/Tribunal had failed to give proper consideration to the claims and should have found that the "assistant Minister"/Tribunal had not sufficiently addressed those claims? 90 This question reflects ground 1(c) of the current appeal. 91 In light of our finding that the first two limbs of this ground of appeal have no substance, it must also be said that, to the extent this ground has meaning, it fails. 92 The primary judge plainly gave close consideration to the grounds of judicial review before finding that the Tribunal did not fail to properly consider the evidence before it and give proper attention to each of the relevant considerations and other considerations it was bound by Direction 65 to consider.

Did the primary judge err in finding that the "assistant Minister's"/Tribunal's assessment "misapplied"? 93 This question reflects ground 2 of the current appeal. 94 The particulars to ground 2, as set out above, are that "the particulars to Ground 1 are repeated and relied upon". 95 In the circumstances, having found that ground 1 has no substance, there is no basis upon which ground 2 can succeed. 96 There is no basis upon which it can be said that the "Assistant Minister"/Tribunal misapplied the provisions of s 501CA(4)(b)(ii) of the Act; or that the primary judge erred in misconstruing that provision and so failed to find that the Tribunal had similarly erred.

Did the primary judge err in concluding that the "Assistant Minister's"/Tribunal's reasoning process was fundamentally flawed by reason of jurisdictional error? 97 This question reflects ground 3 of the current appeal. 98 As noted above, this ground 3 has particulars. They refer to the "grounds of the amended application", as well as stating that the primary judge erred in finding that the "Assistant Minister's" assessment as to the potential for any further offending by the appellant to cause physical harm to members of the Australian community was an assessment without any rational foundation. 99 This ground seems to go to the question of legal unreasonableness. 100 We have set out above the primary judge's analysis of the decision made by the Tribunal. 101 We agree with the analysis and conclusion reached by the primary judge. In the circumstances, an argument that there was legal unreasonableness, of the type referred to in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 and the other authorities cited by the primary judge, cannot be made out. 102 As the Minister submits, the Tribunal's reasons constituted an orthodox application of established principles to the primary and other considerations based on the evidence before it. There is no lack of rationality or logicality in the reasoning process or decision reached by the Tribunal, and the primary judge did not err in so finding.

Did the primary judge err in any of the findings that he made in relation to the grounds of judicial review advanced in the proceeding below? 103 To the extent that the grounds of appeal advanced by the appellant before us are intended to comprehend a ground that the primary judge erred in dismissing the application before him on the grounds advanced at the final hearing, we cannot identify any error in the reasons of the primary judge, which we have briefly set out above, dealing with each of those grounds. 104 On the hearing of the appeal we invited counsel for the Minister to address in particular the issue identified in para (aa) of the allegation advanced before the primary judge that the Tribunal lacked jurisdiction when it made its decision. Ground 1(aa) is set out at [55] above. 105 Counsel noted that the primary judge had regard to relevant authority including LVR and Juneja. 106 We agree that those authorities were relevant to the question raised. 107 Thus, it was important to consider, as the primary judge did, a range of factors in relation to this ground, including: the function of the decision-maker; the source of the function; the source of the copied material; the subject matter of the copied material; whether the copied material was controversial; the similarity of the claim to the claim from which the material was copied; the extent of the copying; whether the copied material was up to date; whether the material was used in addressing the individual circumstances of the applicant, including credibility; and whether the fact of copying and the source of the copied material were acknowledged. 108 We also agree, as the primary judge found, that an important question, if not the critical question, was whether it could be seen that the Tribunal, in this case, consciously engaged with the material and turned its mind to the question or questions that it needed to decide. 109 In that regard, while it is apparent that the Tribunal did adopt much of the written submission of the Minister, with some updates, much of that submission constituted matters of record and was not controversial. 110 This was a case in which, as the Minister submits, the quantity of information or issues presented by the appellant in the Tribunal was quite limited. It was not necessary for the Tribunal, for example, to resolve competing propositions of fact or law. 111 Rather, the Tribunal was required to have regard to the Direction 65 considerations, the evidence that was relevant to them and complete an exercise of weighing the factors that suggested the Tribunal should not revoke the cancellation of the visa decision, with those factors that suggested the cancellation decision should be revoked. 112 In this case, as the primary judge found, the Tribunal plainly turned its mind to that critical question and came to the conclusion that the crimes committed by the appellant outweighed those considerations which might lead to him remaining in Australia following the revocation of the cancellation of the visa decision. 113 We can see no error either in point of a principle or in fact in the reasoning of the primary judge. 114 In other respects there was no circumstance that required the Tribunal to make inquiries into factual matters in the circumstances of this case, as the primary judge found. 115 Nor is there an indication that the Tribunal failed to take into account mandatory relevant considerations or comply with Direction 65, as the primary judge found. 116 As we have said above, nor is there any basis for finding that the Tribunal's decision was legally unreasonable. 117 The primary judge's findings in relation to the various grounds of review before him do not reveal any error. 118 In an appeal of this type, the function of the Full Court is to examine the decision of the primary judge as to whether error is revealed. It is not the function of the Full Court to stand in the shoes of the Tribunal, at first instance, and decide whether, on the merits of his case, the Tribunal should have made a different decision. The merits of the Tribunal's decision are not open to review in the circumstances of this appeal. 119 As no error by the primary judge is disclosed, the appeal must be dismissed.

Conclusion and orders 120 For these reasons, none of the grounds of appeal raised by the appellant can succeed. 121 The appeal should be dismissed with costs. 122 The Court orders: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs, to be assessed if not agreed. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker, Perry and Banks-Smith.