Ground 1(aa) - the Tribunal's reasons
45 Counsel for Mr Rodchompoo have produced a generated comparison between the Tribunal's reasons and the Minister's SOFAC, showing that they are substantially similar. The document shows that the consideration in the Tribunal's reasons from [11] onwards was, it is argued, 'copied without attribution' with only minor exceptions from the Minister's SOFAC. It is submitted for Mr Rodchompoo that this is not a case where the Tribunal has merely copied an uncontroversial chronology or a statement of facts, but it has quite clearly copied, almost verbatim, the arguments and conclusions made by the Minister in its SOFAC and expressed them to be the Tribunal's findings. Despite the Tribunal's statement that it had 'considered and weighed all the primary considerations and other relevant considerations' (at [65]), counsel for Mr Rodchompoo contend that the substantial reproduction of the SOFAC raises questions as to whether it did in fact 'consider' all the primary and other relevant considerations as required by the Direction and whether it did in fact 'weigh the evidence' in the sense required in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (at [5]) and Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 (at 530). In LVR (at [5]), the Full Court (North, Logan and Robertson JJ) said:
Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner's written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal's reasons were taken from the Commissioner's written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner's decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.
(Emphasis added.)
46 For Mr Rodchompoo it is stressed that the obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process in which each relevant matter receives genuine consideration: LVR (at [145]) and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99 per the Court (Emmett, McKerracher and Foster JJ).
47 Mr Rodchompoo submits that there are substantial concerns as to:
(a) whether each relevant matter required to be considered under the Direction received genuine consideration; and
(b) whether the Tribunal discharged its statutory role and performed its allotted task.
48 In raising these concerns Mr Rodchompoo relies on LVR (at [90]-[92] and [142]), where the Full Court said:
90 The principles that have been applied are that at a general level there is no legal error in the use of standard paragraphs. As a matter of the quality of decision-making, some courts have indicated it is preferable or desirable not to use such paragraphs. Where the paragraphs in question relate to the individual circumstances of an applicant, particularly a person's credibility, then closer scrutiny of a decision which contains standard paragraphs is appropriate and necessary to determine whether the tribunal has discharged its statutory function and exercised its jurisdiction to review the decision before it. It is permissible to use standard paragraphs as a guide but not so as to seek to cloak the decision with the appearance of legality.
91 In our view, speaking generally, it is more appropriate to consider these matters by reference to whether or not the tribunal has discharged its statutory role, its jurisdiction to review the decision before it, rather than to approach it by reference to procedural fairness or the inflexible application of policy or acting under dictation. In our view the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task. In a particular case it may also be that adopting submissions has the consequence that the tribunal has failed to disclose its reasoning.
92 In relation to template or standard paragraphs, relevant to the question, to be answered objectively, whether or not the decision-maker has performed its allocated task will be the following:
(i) the function of the decision-maker and the source of that function;
(ii) the source of the copied material;
(iii) the subject-matter of the copied material;
(iv) whether the copied material was controversial;
(v) the similarity of the claim to the claim from which the material was copied;
(vi) the extent of the copying;
(vii) whether the copied material was up to date;
(viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and
(ix) whether the fact of copying and the source of the copied material was acknowledged.
…
142 In Rezaei [v Minister for Immigration and Multicultural Affairs [2001] FCA 1294], Allsop J said Yusuf [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323] did not stand for the proposition that merely because some piece of evidence which the court thought was relevant in the evidential or probative sense could be seen not to have been weighed or discussed, a relevant consideration had not been taken into account and the decision-maker thereby had failed to embark on or complete his or her jurisdictional task. "Relevant" for this purpose meant that the decision-maker was bound by the statute or by law to take this into account. We agree, but that principle does not touch the present case where the appellants' response to an application for dismissal of the proceedings was not taken into account and the decision-maker thereby failed either to embark on or to complete his jurisdictional task.
49 In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J considered the circumstances where a failure to consider each relevant matter will amount to a failure by the Tribunal to discharge its statutory role and a constructive failure to exercise jurisdiction. Her Honour said (at [24] and [35]-[39]):
24 I am not satisfied that the failure of the Tribunal to perform the task it was obliged by para 13.2(1) of the Direction to perform is a failure which was insufficiently material to the outcome of the merits review to justify refusal of relief. I am also not satisfied that read in the context of the Tribunal's other findings, the error (characterised - as the Minister accepted - as a failure to perform a task required of it by the Direction) is not jurisdictional in nature.
…
Why the error is jurisdictional
35 In my opinion this error is jurisdictional in nature. Non-compliance with the terms of the Direction, read with the obligation in s 499(2A) imposed on the Tribunal, have been seen in decisions in this Court as capable of resulting in jurisdictional error. In Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [22]-[44], I examined the legal character of Ministerial Directions made pursuant to s 499, although in those reasons I discussed some aspects of their legal character without determining those matters (but see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [54] where Robertson J decided that Direction No. 65 is not a legislative instrument). What I did note, at [34]-[35], was that a number of decisions of this Court have accepted that non-compliance with a provision in a s 499 Ministerial Direction can constitute jurisdictional error. All the decisions to which I referred in those paragraphs dealt with predecessor directions to Direction No. 65. In Williams and most if not all of the decisions to which I referred, different parts of the applicable Ministerial Direction were in issue, as the underlying power was located in s 501 of the Migration Act. However, the predecessor directions, like Direction No. 65, replicated similar decision-making constraints for each of the powers covered by Parts A, B and C of the Direction.
36 Since Williams there have been other similar statements made: Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [31] (Burley J); Uelese at [55].
37 I noted also at [42] of Williams, that arguments that directions in the nature of Direction No. 65 constitute an unlawful fetter on a discretion conferred in unconfined terms by the Migration Act itself have met with mixed results. No such argument was made here, so there is no occasion further to examine those authorities.
38 As to the cases in [34]-[35] of Williams, neither party in this application referred the Court to those authorities, or any more recent cases along similar lines, although they are of some relevance. For example in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504, the Full Court decided by majority (Buchanan and Perry JJ, Barker J dissenting) that, in the particular circumstances of its review of a cancellation decision, the failure by the Tribunal to make a determination whether cancellation was in the best interests of the children affected was not erroneous at all, let alone erroneous in a jurisdictional sense. The Minister did not make any such argument on this appeal. He accepts there was some material before the Tribunal, although he contends it was limited, and not emphasised or developed by the applicant or his legal representative before the Tribunal. And unlike Paerau, this was not a review decision affected by the terms of s 500(6H) because it did not involve an exercise of power under s 501.
39 In my opinion, aside from the kind of circumstances which arose in Paerau (and which, like Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, were also affected by the operation of s 500(6H) of the Migration Act), the trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) (and subject to any validity issues about a particular Direction), a failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision-maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction. Put another way, where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision-maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act (here, s 501CA(4)): see generally Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76]. I emphasise that this analysis assumes, rather than decides, that a Direction made under s 499, such as Direction No. 65, is capable of imposing on decision-makers the kind of mandatory obligations it purports by its language to do, by (for example) making certain matters mandatory considerations and requiring decision-makers to determine certain matters. The larger question of whether a s 499 Direction can achieve this result in relation to a wide statutory discretion, is the one I left open in Williams, and as far as I am aware, it has not been finally determined in this Court, or by the High Court (but see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [77], cf Jagroop at [78]).
50 It is certainly the case that in LVR the Court was critical of the Tribunal's unattributed reproduction of the submissions of the Commissioner of Taxation regarding a hearing held in relation to the dismissal of an application for failing to comply with a direction of the Tribunal. It is common ground, however, that the matter was not actually determined on that basis, but rather, the Court was not prepared to infer that the Tribunal had considered an affidavit filed in support of the application in circumstances where no reference was made to it in the reasons. In LVR, it was observed that the extensive copying of submissions may lead to a conclusion that there has been a constructive failure on a decision made to carry out its statutory task. But this will not always be so necessarily. See, for example, the discussion in Beaman v Bond [2017] FCAFC 142 per McKerracher J (with whom Gilmour and Charlesworth JJ agreed) (at [67]-[68]), although it must be noted that these remarks were clearly obiter as the appellant had not expressly pursued that ground of appeal. The view I expressed in Beaman was that it was important that the parties be satisfied that an independent mind has been brought to bear on the debate. As I noted in Beaman, this confidence may be displaced if one is left with an impression that arguments have been embraced without serious consideration either to the contrary point of view or the application of an independent point of view.
51 A most helpful analysis on this topic appears in Juneja v Tax Practitioners Board (2017) 72 AAR 407, where Besanko J said (at [84]-[93]):
84 The applicants put their submission in the following way. Both parties prepared closing written submissions and put those submissions before the Tribunal. The applicants submitted that the Tribunal copied and included in its reasons, large parts of the respondent's closing written submissions. The copying was not limited to background facts, but included key findings and conclusions of the Tribunal. The applicants put forward a table showing paragraphs in the Tribunal's reasons and their counterparts in the respondent's closing written submissions. That table is set out below. For its part, the respondent, for the assistance of the Court, provided a copy of the Tribunal's reasons with additions and deletions, including paragraph numbers, which showed where the Tribunal's reasons correspond or do not correspond, as the case may be, with the respondent's closing written submissions.
85 The applicants submitted that the greater part of the Tribunal's reasons consist of "the mostly uncritical adoption by the Tribunal of the Respondent's submissions, copied verbatim". The applicants submitted that this is "particularly concerning where it relates to key issues and adverse findings made against the Applicants" and that the Tribunal's approach casts "serious doubt upon whether the Tribunal engaged in the active intellectual process necessary for the exercise of the jurisdiction reposed in it". In oral submissions, the applicants went further than a claim of a serious doubt and submitted that the Tribunal had not exercised the jurisdiction reposed in it. The applicants referred to the decision of the Full Court of this Court in LVR v AAT.
86 There is very little authority on the point in issue. There are cases where an applicant has claimed that a Tribunal did not carry out its review function because it used standard paragraphs, that is to say, paragraphs found in other Tribunal decisions (WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362). That is not this case. There is, of course, the principle that the decision-maker must give genuine consideration to the issues he or she is required to address (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J). Extensive copying may reflect a failure to discharge that obligation. There are cases where an applicant has claimed that a lower court has simply copied the submissions of one of the parties and, therefore, not provided adequate reasons or carried out its function properly (Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407). Again, that is not this case because, as the Full Court noted in LVR v AAT at [81] and [98], the respective positions of Courts and Tribunals differ. The closest authority to which I was referred was, in fact, LVR v AAT. Even that case does not provide binding guidance, in that the actual basis of the decision was that the Tribunal's decision should be set aside because the Tribunal had failed to take into account a relevant consideration, namely, the applicants' explanation for their failure to comply with the Tribunal's directions. The Court did discuss the issue at length, but expressly said that it was not deciding the case on that basis (at [5]). Nevertheless, the decision is, with respect, helpful because it indicates that extensive copying of a party's submissions may lead to the conclusion that there has been a constructive failure by the Tribunal to exercise its jurisdiction whether that is because the Tribunal has failed to disclose its reasoning or otherwise (at [91]). The decision is also helpful because it identifies some of the matters which are relevant in terms of assessing the significance of copying. They include the extent of the copying, the extent of attribution, if any, and the significance of what is copied, ranging from an undisputed fact at one end of the spectrum, to core reasoning at the other end of the spectrum.
87 The Tribunal's reasons consist of 62 paras which may be broadly divided by reference to the headings into the following: Introduction (paras 1 to 2 inclusive), Material Background (paras 3 to 28 inclusive), Legal Framework and Legislation (paras 29 to 31 inclusive), Relevant Policy (paras 32 to 34 inclusive), Issues (paras 35), Relevant Cases (paras 36 to 39 inclusive), (and ignoring subheadings for present purposes) Consideration (paras 40 to 60 inclusive), Conclusion (para 61) and Decision (para 62).
88 The applicants' table was as follows:
…
89 By and large, this table is a fair representation of what has occurred. I say "by and large" because one might argue about one or two of the entries and the extent to which it is appropriate to describe the reproduction as substantively identical on the one hand, or similar or very similar on the other. The comparison suggests that the Tribunal accepted the respondent's statement of the relevant facts and, as to the critical matters of competence, character and contrition, it accepted the respondent's submissions, on a number of occasions, using the same phraseology. I do not know how the Tribunal prepared its reasons. However, it seems reasonable to infer that the Tribunal accepted the factual background outlined by the respondent and simply repeated it and then worked its way through the respondent's submissions in preparing its reasons. That does not mean that it did not consider the applicants' case or engage in an active intellectual process in accepting the respondent's submissions.
90 In addition, the following matters are to be noted.
91 First, many of the factual matters stated by the Tribunal were either expressly not in dispute or were not reasonably capable of being disputed. Apart from the alleged telephone call on 13 June 2013, I cannot see anything in the matters in the sections headed Introduction and Material Background which were or could be seriously in dispute. I say that, having regard to the material before the Tribunal and this Court, in particular, the Respondent's Statement of Issues and the applicants' response to that document. There was nothing contentious in this case about the matters in the sections headed Legal Framework and Legislation, Relevant Policy and Relevant Cases. As to the Statement of Issues, the Tribunal's reasons reflected the issues which the parties agreed before the hearing were the issues. In my opinion, in the ordinary case at least, it would be prudent, not a matter for criticism, to state the issues in terms of the parties' agreement as to the issues. The "lack" of attribution is of no significance in this context.
92 Secondly, the Tribunal did, from time to time in its reasons, refer to submissions of the applicants and did acknowledge that it was repeating or summarising or referring to a submission made by either the applicants or the respondent. In that section of the reasons appearing under the heading Consideration, there are the following subheadings: Competence (paras 41 to 46 inclusive), Character (paras 47 to 53 inclusive), Contrition (paras 54 to 58 inclusive), and the Board's Submissions (paras 59 to 60 inclusive). In considering competence, the Tribunal referred to a submission of the Board and a submission of the applicants (para 46). In considering character, the Tribunal referred to three submissions of the Board, the fact that counsel for Mr Juneja did not cross examine on a particular topic and a submission by the applicants (at [52]-[53]). In considering contrition, the Tribunal referred to the Board's submissions on four occasions ([55], [56] and [58]) as well as in its concluding paragraphs ([59] and [61]).
93 Thirdly, the Tribunal, whilst repeating a number of the respondent's submissions, did not simply adopt or copy all of the respondent's submissions. Some examples will suffice. The Tribunal in paragraphs 41 to 44 inclusive of its reasons reproduce a number of the statements in paras 57 to 67 inclusive of the respondent's written submissions, but did not include para 60, part of the last sentence in paragraph 59, and the first sentence in paragraph 61 and the changes made by the Tribunal to paras 68 to 70 inclusive of the respondent's written submissions as reflected in paragraphs 45 and 46 inclusive of its reasons. Another example is to compare para 55 of the Tribunal's reasons with paras 89 - 91 of the respondent's closing written submissions:
55 The Board has submitted (and I further agree) that the Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder, but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan and/or other former staff members of Cudmores. Given what is stated at paragraph 42 above about the Applicant's duties as a director of Cudmores, the Board further submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores, particularly after he became its sole director on 12 January 2011. (Emphasis added [in original].)
[…]
89 The Individual Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan, Ms Curnow and/or other former staff members of Cudmores.
90 In Re and Tax Agents' Board SA (1982) 13 ATP 192, Cook J relevantly stated (at pp 196-197):
The failure to lodge his personal income tax returns and the failure to pay on time the group tax instalments suggests incompetence on [the agent's] part. In his evidence before me, [the agent] placed the blame on other persons …
… [The agent] has laid the blame upon other persons in his practice. But all these matters were matters with respect to which [the agent] had ultimate responsibility and the duty to take a personal interest. The problems that arose reflect upon his competence.
91 Given what is staged at [62]-[64] above about the Individual Applicant's duties as a director of Cudmores, the Respondent submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores - particularly after he became its sole director on 12 January 2011.
The comparison reveals that in para 55 of its reasons, the Tribunal has acknowledged the source of the submissions and has not included para 90 of the respondent's submissions.
52 Adopting a similar exercise in this case, there are of course many paragraphs of background facts recitation and statements of the law about which, for the most part, no complaint or contest is made or is open. However, some of the content is more sensitive particularly the description or characterisation of the facts. For example, Mr Rodchompoo takes issue with the Tribunal's description of his criminal record as 'an extensive criminal history', an expression used by the Minister. Mr Rodchompoo emphasises although there were 'a vast range of offences between 1999 and 2015', what was important is that there were eight convictions for possession of cannabis and no history of selling and supplying cannabis. Further, objection was taken to the Tribunal adopting the Minister's submission that the offences for which Mr Rodchompoo was convicted are 'clearly serious'. In this, and a number of other instances, the expression 'the respondent contends' was replaced with 'the Tribunal considers'. This extended to the specific paragraphs extracted from the Court Book where there were statements made by magistrates or judges in regards to Mr Rodchompoo's sentencing, even adopting a typographical error as to the name of the one of the magistrates contained in the Minister's SOFAC.
53 Objection is taken to the exclusion of the fact (in contrast) of a sentencing remark from Scott DCJ to the effect:
You pleaded guilty at the earliest opportunity and are entitled to a discount for that plea. As to remorse, you pleaded guilty. I accept it means you accept the unlawfulness of your conduct.
54 At the conclusion of the Tribunal's reasons, what was deleted from the Minister's SOFAC was '[t]he respondent contends that the Tribunal should conclude that having', while what was inserted by the Tribunal was:
Having considered and weighed all the primary considerations and other relevant considerations required to be taken into account by the Tribunal under [the Direction] and the available evidence …
55 Mr Rodchompoo points to this as being copied from [8] of the Minister's SOFAC, which was deleted in the Tribunal's reasons and moved to the end. Mr Rodchompoo emphasises that the decision given by the Tribunal was on 4 November 2016, the hearing being on 2 November 2016, with over 300 pages of Court Book and an hour and a half approximately of oral hearing.
56 Mr Rodchompoo also relies upon MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154, a Full Court decision (Tracey, Murphy and Mortimer JJ) in which the Federal Circuit Court had remitted a matter to the Refugee Review Tribunal for reconsideration for reasons of jurisdictional error by the original Tribunal. The decision of the second Tribunal, however, affirmed the earlier Tribunal's decision, but the Full Court noted that many passages in the second Tribunal's decision were identical, or identical except for minor syntactical modifications, to passages contained in the first Tribunal's decision. At [58]-[59], the Full Court said:
58 The emphasis of the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32] that a tribunal on review must consider "for itself" whether it is satisfied a person meets the prescribed criterion for a protection visa is, with respect, an appropriate emphasis. The nature of the task was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [71]-[73]:
"In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.
The Tribunal's written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf, where six members of the Court held that the Act's requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought processes of the Tribunal, not some objectively determined set of "material" facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made.
Necessarily, the findings that are recorded in the Tribunal's written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented."
(Emphasis added; citations omitted [in original].)
59 It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.
57 In Mr Rodchompoo's hearing before the Tribunal he was 'represented' by his sister, but a reading of the transcript reveals that, of course, in the absence of legal training, she was limited in her capacity to assist.
58 It appears to be common ground that the treatment of the further amended grounds of Mr Rodchompoo's application may throw light on the extent to which the Tribunal merely adopted the Minister's SOFAC without due consideration or whether it is sufficiently apparent from considering the Tribunal's submissions that it did genuinely apply an independent mind to the matters as they came before the Tribunal.
59 There are, it is most important to recall, a number of difficulties faced by a Tribunal in a matter such as this. The first difficulty is that the grounds of review brought to the Tribunal by an unrepresented individual with limited education are hardly likely to throw up particularly helpful arguments, at least on technical matters. It is not as though the Tribunal had the considerable assistance, which I have had, of sophisticated arguments of pro bono solicitors and experienced counsel.
60 Secondly, the Tribunal deals with a great number of migration matters (literally in the tens of thousands). More specifically, in relation to migration matters arising under s 501 of the Migration Act, there are over a thousand published decisions of the Tribunal. It is inevitable in such high volume matters that there will be an interplay between the submissions to the Tribunal and the decision by the Tribunal, not simply because the Tribunal copies the submissions, but because, as occurs in this Court, submissions are prepared with considerable regard to the previous decisions by the Tribunal. In addition to citation of uncontested facts there is, in all such matters, reliance on well recognised and repeated expressions from the various legal authorities that consider the relevant provisions from time to time. To not cite such material in submissions/reasons can give rise to other criticisms. Further, very often, at least in Western Australia, submissions are being considered by the same Tribunal member. A substantial portion of the material which will appear in submissions has to appear in submissions and has to appear in the reasons. There are only a certain number of ways certain things can be said. As the Minister contends, there are only so many ways you can restate well known principles, but which principles must be stated in the decision.
61 One of the difficulties in this particular instance, however, is that before the Tribunal there was what might be described as a plea in mitigation which to some extent reflects the submission first made in this Court. There is a complaint that the Tribunal failed to properly assess the severity of the offences. But there was very little the Tribunal could say about such a submission.
62 In the present case, subject to the discussion raised in this appeal, it is difficult to identify any substantive additional material which can be contended that the Tribunal should have seriously evaluated and analysed. In contrast, in LVR there was substantially more material than in the present case - some 77 lever arch files of material filed. In LVR (at [88]), their Honours noted that different and more benign considerations arise with respect to the copying of common form material in high volume decision-making in relation to many similar claims, providing always that it is evident that this has not been done to the exclusion of a consideration of the merits of an individual case. LVR was not a high volume case, as this case was.
63 In that regard, as noted by Besanko J in Juneja (at [47]), the applicant must establish first that the Tribunal overlooked the evidence (or in that case the inference of competence which might be said to arise from the evidence) and, secondly, that this oversight amounted to an error of law. His Honour also cited Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 where the Full Court (French, Sackville and Hely JJ) onousaid (at [46]-[47]):
46 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. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there 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 (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added.)
64 Besanko J also noted in Juneja that overlooking certain evidence does not of itself amount to an error of law. It might have meant no more than that the Tribunal committed an error of fact or some other failing not amounting to a failure to take into account a relevant consideration or asking itself the wrong question: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97] per McHugh, Gummow and Hayne JJ and LVR (at [143]-[144]). In contrast, a Tribunal might reach a conclusion that it was reasonably open to make a finding when it was not so open: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 (at [217]).
65 In the present instance, although Mr Rodchompoo certainly had something to say about why he pleaded guilty to the offence of possession with intent to sell, otherwise he had filed no written submissions, no witness statements and no supporting evidence. There was nothing in his materials which was capable of addressing the considerations that are set out in the Direction. As the Minister contends, while Mr Rodchompoo's opening and concluding submissions to the Tribunal were no doubt heartfelt, they were not directed to those considerations the Tribunal was required and empowered to address or take into account. There was little or nothing in the content of those submissions which directly addressed the required primary considerations as identified in the Direction, such as the protection of the Australian community, the expectations of the Australian community and the risk of recidivism. It can be accepted that they did have some relevance to the connection of ties within Australia.
66 But even accepting that there is significant replication of the Minister's SOFAC, nonetheless, there are, as there were in Juneja, indications that the Tribunal specifically considered the evidence from Mr Rodchompoo, including evidence given in cross-examination. The conclusions were not all favourable by any means to Mr Rodchompoo, but nonetheless it is apparent that the evidence on the cross-examination was considered. This crucial content, necessarily, was not part of the SOFAC. It is Mr Rodchompoo's own evidence at the Tribunal hearing that appears within the Tribunal's reasons, which supports a conclusion that the Tribunal considered his arguments and reached its own determination. At [37], [43], [54] and [62]-[63], the following matters are set out:
37. It is clear to the Tribunal, and by his own admission, Mr Rodchompoo's offending relates to his drug addiction. There is no evidence before the Tribunal of any serious attempts by Mr Rodchompoo to rehabilitate himself. In any event, the fact that Mr Rodchompoo has been convicted recently for drug offences suggest that little has been done to address his addiction …
…
43. At the hearing of this application, during cross-examination, Mr Rodchompoo was asked by the Minister's representative to describe, in his own words, the circumstances of his offending in relation to a number of separate convictions. On each occasion, Mr Rodchompoo sought to minimise his involvement in the offending, seeking to impute blame onto the person(s) he was with at the relevant time, stating that he was simply "in the wrong place, at the wrong time". This demonstrates that Mr Rodchompoo has failed to take ownership of and personal responsibility for his offending, demonstrating that Mr Rodchompoo is far from rehabilitated and is extremely likely to re-offend if he is allowed to remain in Australia.
…
54. Mr Rodchompoo has been ordinarily resident in Australia since arriving at the age of 13 in 1993. His immediate family (namely his Mother … , his brother … , his sister … and his other brother …) reside in Australia. Mr Rodchompoo claims to have worked, albeit to a limited degree, in Australia for "Honbits Australia, Plant Supply, Ace Auto and CTP Export".
…
62. Prior to moving to Australia at the age of 13, Mr Rodchompoo lived with his grandfather and uncle in a small village in Thailand. Mr Rodchompoo's grandfather and uncle are now both dead and he does not know whether his uncle has any remaining family in Thailand. The Tribunal acknowledges that Mr Rodchompoo may experience some hardship as a consequence of moving to Thailand, particularly given he has not returned to Thailand since the age of 13 and claims that he cannot speak or write Thai. However, Mr Rodchompoo told the Tribunal that he did speak Thai before he moved to Australia (at the age of 13) and that it is possible that he could learn to speak it again.
63. The Tribunal also acknowledges that there is some evidence in the sentencing remarks that Mr Rodchompoo has complex mental health issues and he may have access to a superior health system in Australia in this regard.
(Emphasis added.)
67 These extracts support a conclusion that the Tribunal independently considered the matters put before it, even though it preferred the Minister's contentions in relation to the evidence given by Mr Rodchompoo. This was in the context in which Mr Rodchompoo had failed to put forward a proper case, not only at a technical level, but also by failing to comply with the direction made by the Tribunal that he file a Statement of Facts, Issues and Contentions and any further evidence. Also, as previously noted at the hearing itself, no substantive assistance directed to the proper legal considerations was made available by Mr Rodchompoo to the Tribunal.
68 For completion, I note at this point (and later discuss) a further complaint that the Tribunal failed to render sufficient assistance to Mr Rodchompoo who was, for practical purposes, unrepresented.
69 It is well recognised that the Tribunal should expect a government respondent to assist it in reaching the correct or preferable decision. The government has a specific role to ensure that the Tribunal does not proceed in a direction which is not supported by statute and authority.
70 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.