5.4 Ground 4
86 The fourth ground advanced by the applicant is that the Tribunal's decision was legally unreasonable, illogical, or irrational. Ultimately, the applicant submits there are five propositions which, when taken together, reach the level of legal unreasonableness:
(a) The issue of the applicant's age (being born in 1997 not 1995);
(b) The applicant's age not being a contentious issue;
(c) The Tribunal's reliance on sentencing remarks, made where the applicant was sentenced as an adult, when he was still a minor;
(d) The applicant's rehabilitation was not tested outside detention in the community and
(e) The Tribunal's misunderstanding of its task as being the exercise of a discretion rather than an evaluative task.
87 The applicant submits that the question of legal unreasonableness is highly fact-focussed: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [48] (per Moshinsky, O'Bryan and Cheeseman JJ).
88 The Tribunal accepted that the applicant was born in 1997 and described that fact as being uncontentious. However, the Tribunal referred at [97] to the applicant being aged 27, not 24 as he would have been at the time of the decision if born in 1997. This is the source of the Tribunal's alleged illogicality.
89 In relation to this ground, the applicant says that the applicant's age is relevant to the Tribunal's assessment of the nature and seriousness of the applicant's offending for the purposes of para 8.1.1(1) of Direction 90. As set out above, the Tribunal referred to the remarks on sentence of various sentencing judges (at [23] and [32]). The applicant submits that the various judges who sentenced the applicant as an adult did not realise the applicant was a child in relation to all criminality up until 17 November 2015.
90 The applicant submits that the Tribunal therefore should have approached the various remarks on sentence of the criminal offending with great caution. The applicant maintains that his age at the time of the relevant criminal offending was a highly relevant matter on sentence and therefore the Tribunal's reliance upon the flawed factual basis upon which the applicant was variously sentenced over the years has infected the Tribunal's reasoning process.
91 When addressing the issue of the applicant's age at the time of his convictions, counsel for the applicant argued that the outcome of the charge was irrelevant. Counsel submitted that the Tribunal should have viewed the applicant as a minor at the time of offending and sentenced as an adult. As such, the applicant was not afforded the protection often provided to minors in the criminal justice system.
92 The applicant submits that the Tribunal's consideration of the primary consideration of the protection of the Australian community was legally flawed as the applicant, through no fault of his own, had no opportunity to demonstrate his rehabilitation outside of detention in any practical sense. The applicant relied on the decision of Mortimer J (as her Honour was then) in Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [95] that the lack of opportunity to demonstrate rehabilitation in the community does not in itself provide a basis for a positive finding that the applicant is likely to reoffend.
93 The applicant also seeks to rely on Grounds 1 and 2 for the purpose of Ground 4, namely that the Tribunal erroneously approached the statutory question from the perspective of the exercise of a discretion. For the reasons outlined above, the applicant has failed to make out Grounds 1 and 2 and, accordingly, I reject those arguments as far as they relate to Ground 4.
94 The final point on which the applicant relied in advancing this ground is that no separate threshold of materiality applies for the purposes of Ground 4. In advancing this point, the applicant draws attention to [76] of Nathanson v Minister for Home Affairs (2022) 403 ALR 398 in which Gageler J (as his Honour was then) said the following:
A majority in MZAPC acknowledged that there are certain categories of error which necessarily result in "a decision exceeding the limits of decision‑making authority without any additional threshold [of materiality] needing to be met" by an applicant. One such category is where the error is so egregious that it will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker. A serious denial of procedural fairness involving a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision (as occurred in this case) falls into that category. Put in different terms, "the quality or severity of the error", as a matter of logic and common sense, necessarily gives rise to the conclusion that it does not matter whether the "decision could realistically have been different had [the] error not occurred". Here, the "gravity of the consequence of the decision", together with "[h]uman experience and plain common sense", compel the inference that Mr Nathanson would, if fairly put on notice of the issue, have addressed it and said all that he could have about the domestic violence incidents in the context of the primary consideration of the protection of the Australian community.
(Citations omitted.)
95 The Minister submits that the Tribunal accepted the applicant's 1997 birth year which had been asserted by the applicant in his own statement of facts, issues and contentions dated 15 August 2022, and it may be accepted that the Tribunal proceeded on that basis. Further, the Tribunal's observation that the applicant had committed domestic violence against his partners since he "was about 17 years old", which was referable to his offending since 2014 (see at [22], [45]), implied a birth year of 1997, not 1995.
96 Whether the Tribunal's reference at [97] to the applicant being 27 was a typographical error, or a miscalculation, the Minister submits that nothing concerning the nature and seriousness of the applicant's offending turned on whether the applicant was approximately 24 or 27. Further, as the Full Court has stated, "[a]n inconsistency in reasons does not necessarily and of itself demonstrate an illogical finding of fact or any other error of law": QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328 at [28] (per McKerracher, Griffiths and Bromwich JJ) (overturned on unrelated grounds in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 (per Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ)).
97 In addressing the reliance on sentencing judges' remarks, the Minister submits that the applicant does not suggest that the Tribunal was entitled to somehow go behind the applicant's prior sentencing findings, only that it should have approached the remarks on sentence with "great caution". The Minister maintains that it is not explained how approaching the sentencing remarks with that caution could conceivably have led the Tribunal to find differently as to the applicant's criminal history and the warnings he had been given,.
98 In addressing the alleged error in observing that the applicant's rehabilitation had not been tested outside detention, the Minister observes that it is a matter of fact that the applicant "has not been tested in the community since he undertook the very limited rehabilitative courses in August 2020". The Minister submits that the Tribunal's observation was relevant to engaging with Dr Zimmerman's report which had stated as a positive fact that the applicant was able to identify areas where he would benefit from support. It was relevant to assessing the applicant's risk to the community that those identified further areas for rehabilitation were still "not adequately addressed". The Tribunal found that there was a "real, albeit low, risk of further offending" at [42] and this finding cannot have been unreasonable (or contain any error material) in that context.
99 In relation to materiality, the Minister relies on the following observation of Kiefel CJ, Gageler, Keane and Gleeson JJ at [33] of MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506:
The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.
(Emphasis added.) (Citations omitted.)
100 In oral submissions, counsel for the Minister submitted that when it comes to outcome unreasonableness, the High Court has said that no separate criterion of materiality applies. If the only legally reasonable outcome was that the applicant has his visa cancellation revoked, there could not be any sensible argument that unreasonableness was not material to the decision.
101 The Minister submits that it is apparent that the applicant does not (and sensibly could not) allege outcome unreasonableness. That is, he does not contend that the only decision reasonably available on the material was for the revocation of the applicant's visa cancellation. Therefore, the Minister maintains that the applicant must demonstrate materiality in relation to the unreasonableness of the particulars errors in the Tribunal's reasons of which he complains.
102 The Minister drew attention to Full Court's comments in Tsvetnenko v United States of America (2019) 269 FCR 225 at [94]-[96] (per Besanko, Banks-Smith and Colvin JJ):
[94] However, in the case of a claim that the decision was unreasonable by reason of the character of the reasoning advanced to support the decision, it will be necessary to consider whether the decision was "materially affected by unreasonableness": SZVFW at [55] (Gageler J). This reflects the need to consider whether the decision (not simply the reasoning) was unreasonable in the requisite sense, namely because the decision was unreasonable (when evaluated by considering the result or the reasoning process supporting the decision). An immaterial respect in which the reasoning is "without any evident or intelligible justification" does not make the decision unreasonable in a jurisdictional sense. In such an instance, the decision as a whole still conforms to the implied standard of reasonableness.
[95] As was made clear in SZVFW, a question as to whether an administrative decision is unreasonable in a jurisdictional sense is a legal one which though evaluative in character is capable of only one correct answer: at [18] (Kiefel CJ), [54]-[56] (Gageler J), [87], [116]-[117] (Nettle and Gordon JJ) and [154]-[155] (Edelman J).
[96] Having regard to the nature of the review ground, it is illogical to speak of the extent of non-compliance with an implied obligation to make a decision that is reasonable. It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way. Rather, in a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.
103 The Tribunal accepted the applicant's birthdate as 1997 as the first background fact at [16]. The applicant was unable to show how the Tribunal's misstatement as to the applicant's age as 27 (rather than 24) in the context of his links to the Australian community, had relevantly affected the Tribunal's considerations. Indeed, it might be thought that an additional three years of links with the Australian community might be beneficial to the applicant for the purposes of the Tribunal's consideration of that issue. A minor inconsistency in recording the applicant's age in the Tribunal's reasons, that cannot be shown to have any bearing on the Tribunal's considerations, does not demonstrate an illogical finding of fact or any other error of law: QYFM at [28] (per McKerracher, Griffiths and Bromwich JJ).
104 As to the Tribunal' reference to the sentencing remarks, the applicant does not suggest that the Tribunal was entitled somehow to go behind the applicant's prior sentencing findings, only that it should have approached the remarks on sentence with "great caution". It is not explained how approaching the sentencing remarks with that caution could conceivably have led the Tribunal to find differently as to the applicant's criminal history and the warnings he had been given, than as it did in [23] and [32] of its reasons
105 The Tribunal did not place "blind reliance" on the sentencing remarks. It referred to the sentencing remarks of various sentencing judges for the descriptions of the violence committed by the applicant, in the context of considering the nature and seriousness of the applicant's conduct, and in particular whether it involved domestic violence. The Tribunal was not considering the applicant's sentencing history, rather the acts committed by the applicant which led to the sentences. The descriptions of the violent acts are unaffected by whether the applicant was a minor or an adult when committing the acts. For example, at [23], the Tribunal referred to a Magistrate's description of an assault as being "particularly violent". The flawed factual basis on which the applicant was sentenced prior to 2016 did not infect the Tribunal's considerations.
106 In its consideration of the likelihood of further criminal or other serious conduct by the applicant, the Tribunal made reference to Dr Zimmerman's July 2021 report and her positive statement that the applicant was able to identify areas where he would benefit from support in the future, one area of which was relationship counselling. The Tribunal accepted that as a positive factor in favour of the applicant, but noted that it remained the case that the applicant had not adequately addressed the areas in which he had said that he would benefit from support as at the date of the decision. Ultimately, the Tribunal stated at [42]:
Since the applicant was about 17 years old he has committed physical violence against each of the three women with whom he had a relationship over a four year period. He also committed domestic violence towards his mother. The violence did not come to an end until he was incarcerated. He has not been tested in the community since he undertook the very limited rehabilitative courses in August 2020. To release him into the community without adequate rehabilitation would put the Australian community at risk of further harm. There is a real, albeit low, risk of further offending which I consider to be unacceptable.
107 The Tribunal was concerned as to the applicant's history of domestic violence in relation to four women (including his mother); violence which did not stop until he was incarcerated. The Tribunal's concern reflects the Australian Government's consideration of family violence as a serious issue as expressed in Direction 90.
108 As submitted by the Minister, the Tribunal's conclusion at [42] accorded with the psychologist, Mr Mackinnon's, opinion that there was only a low chance of the applicant reoffending in any serious manner, and also what the applicant had himself contended that there was a low risk of his re-offending. I do not consider that the Tribunal's conclusion in accordance with the applicant's contention to be unreasonable.
109 Notwithstanding, I have had high regard to the applicant's criminal offending from 2014 to 2018, being an extensive record spanning over four years. I further note that the applicant's offending only ceased once the applicant was either incarcerated or being held in detention. The nature and frequency of the offending increased over the years, demonstrating a concerning pattern.
110 The Tribunal, in considering the applicant's pattern of offending, came to the conclusion at [42] that "[t]here is a real, albeit low, risk of further offending which [it] considers to be unacceptable". The Tribunal accepted that the risk of offending was low and acknowledged that the applicant had taken part in "very limited rehabilitative courses in August 2020" . The protection of the Australian community is a serious factor and any assessment of this factor should not be taken lightly. The nature of the applicant's offending in the past was serious and violent. The Tribunal did not err in considering that a low level of risk would subsist if the applicant was released back into the community.
111 Finally, I reject the applicant's submission that the totality of errors made by the Tribunal bespeaks a process of reasoning that was legally unreasonable. None of the alleged errors have been established, aside from the misstatement of the applicant's age at [92], and that error has not been shown to be material.
112 Accordingly, the applicant has failed to establish the fourth ground of review.