Sioni v Minister for Immigration, Citizenship and Multicultural Affairs

LEGISLATIVE FRAMEWORK

1. Section 501(3A) of the Act provides that the Minister must cancel a visa if the Minister is satisfied that a person does not pass the character test due to having a substantial criminal record and that person is serving a full-time custodial sentence. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
2. Pursuant to s 501CA(4) of the Act, the Minister may revoke a decision to cancel a visa under s 501(3A) if the person makes representations which satisfy the Minister that either the person passes the character test, or that there is another reason why the original decision should be revoked.
3. Pursuant to s 499(2A) of the Act, a person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1). In the present case, Direction No 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Paragraph 5 is described as the preamble to the Direction and, at 5.1(4), it states that the purpose of the Direction is to guide decision makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501 or revoke a mandatory cancellation under s 501CA of the Act.
4. Paragraph 8 of Direction 99 sets out the primary considerations as follows:
5. Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
6. Whether the conduct engaged in constituted family violence (Primary Consideration 2);
7. The strength, nature and duration of ties to Australia (Primary Consideration 3);
8. The best interests of minor children in Australia (Primary Consideration 4); and
9. Expectations of the Australian community (Primary Consideration 5).
10. Paragraph 9 of the Direction 99 sets out four 'Other considerations' to be taken into account where relevant:
11. Legal consequences of the decision (Other Consideration 1);
12. Extent of impediments if removed (Other Consideration 2);
13. Impact on victims (Other Consideration 3); and
14. Impact on Australian business interests (Other Consideration 4).

TRIBUNAL'S DECISION

1. The hearing took place before the Tribunal on 10 and 11 July 2023. The Tribunal heard oral evidence from the applicant and one other witness, the applicant's brother. The Tribunal also received written submissions and evidence.
2. The Tribunal considered that it was uncontroversial that the applicant failed the character test. The question then rested on whether there is "another reason" why the cancellation of the applicant's visa should be revoked.
3. The Tribunal considered the applicant's offending history and divided it into two categories, relevant to the victims. The first category related to the offending against the applicant's former girlfriend in relation to distributing prohibited visual recordings (otherwise known as "revenge porn"), the contravention of a domestic violence order and breach of a probation order: TD[19] - [24]. The second category was with respect to offending against a different former girlfriend of the applicant in relation to assault occasioning bodily harm, contravention of a domestic violence order (aggravated offence) and breach of bail conditions: TD[25] - [29].
4. From TD[33] - [38] the Tribunal had regard to the applicant's criminal offending or other conduct to date. It was not contentious that the applicant's offending is very serious due to its characterisation as violent and sexual in nature: TD[35]. The Tribunal considered that the applicant's offending had been frequent, noting that he had been found guilty of nine offences over a five-year period. The Tribunal also found that his offending had increased in seriousness over that time: TD[38]. The Tribunal characterised the applicant's conduct to date as "very serious": TD[39].
5. The Tribunal also considered the risk of the applicant re-offending. In that assessment, it considered the applicant's contentions that he has a low risk of reoffending, and that his offending could be attributed to alcoholism, which was caused by depression, anxiety and Post-Traumatic Stress Disorder: TD[45] - [48]. The Tribunal also acknowledged that the applicant had engaged with a psychologist, Mr Greg Hutcheon, and a drug and alcohol abuse councillor while in immigration detention: TD[49], [51]. Before the Tribunal was various material which it acknowledged evidenced that the applicant had sought a number of counselling and education organisations while incarcerated or in immigration detention: TD[52].
6. At TD[67], the Tribunal drew the following conclusions in respect of the applicant's risk of re-offending:

• The type of the harm posed by the Applicant, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable;
• while I accept that the Applicant genuinely believes that he poses a low risk of reoffending based on what he sees as considerable efforts to engage in (and seek to engage in) therapy, counselling and education about, or in relation to, the causes underlying his offending, there is limited credible independent evidence of his reoffending risk;
• given the seriousness of the Applicant's offending over a number of years, I do not accept that undertaking limited duration therapy, counselling and education about the causes underlying his offending, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision;
• the Applicant's rehabilitation has not been tested in the uncontrolled environment within the community with the added daily pressures of living, or in a new relationship; and
• overall, in the absence of tested evidence of rehabilitative progress and in the context of his repeated offending, I find that the Applicant has a moderate risk of reoffending. (Emphasis in original.)

1. Accordingly, the Tribunal found that Primary Consideration 1 weighed heavily against revocation: TD[68] - [69].
2. As to Primary Consideration 2, the Tribunal again considered that the applicant's violence, having been perpetrated against former girlfriends and therefore being categorised as family violence, was frequent and increasing in seriousness. It considered that when the applicant's offending is viewed cumulatively, it is of an especially serious nature: TD[75]. While the Tribunal acknowledged that the applicant had expressed remorse and engaged in rehabilitative activities, it ultimately found that the applicant's progress "remains untested outside a controlled environment": TD[77]. The Tribunal was satisfied that the applicant accepted responsibility for his family violence offending and understood the impact on the victims: TD[78]. However, the Tribunal ultimately found that Primary Consideration 2 weighed heavily against revocation: TD[80].
3. The Tribunal then considered the applicant's ties to Australia, which comprised family members and friends living in Australia, including his younger brother: TD[83] - [87]. The Tribunal found that the applicant has strong ties in Australia and that Primary Consideration 3 weighed heavily, but not determinatively, in favour of revocation: TD[88].
4. The Tribunal concluded that Primary Consideration 4 conferred neutral weight as no child is dependent upon the applicant, nor does he play a parental role with respect to any child: TD[94] - [95].
5. As to the expectations of the Australian community, the Tribunal found that, on the basis of the applicant's repeated and serious violent offending, constituting family violence and violence against women, Primary Consideration 5 weighed heavily against revocation: TD[103] - [104].
6. The Tribunal found that Other Considerations 1, 3 and 4 conferred neutral weight: TD[123]. However, as to the extent of impediments if the applicant is removed from Australia, the Tribunal concluded that it weighed heavily, but not determinatively, in favour of revocation: TD[120]. In that regard, the Tribunal did not consider that the applicant's mental and health conditions can be "adequately managed over time in Papua New Guinea": TD[119]. The Tribunal also considered that the applicant may face impediments with respect to the social, medical and/or economic support available to him in Papua New Guinea: TD[119].

CONSIDERATION

1. I note that the originating application was unparticularised and the applicant's claim largely amounted to disagreement with the conclusions reached by the Tribunal as to the merits of his case. However, as he is a litigant in person, I have made every endeavour to fairly distil his arguments as fully as reasonably possible, including carefully considering the grounds of review in the context of the material before the Court and oral submissions made at the hearing.

Grounds One and Three

1. By grounds one and three, as identical grounds, the applicant contended that there was a constructive failure to exercise jurisdiction with respect to two issues. First, the Tribunal's findings about the applicant's risk of re-offending and, secondly, as to the weight attributed to the applicant's rehabilitative activities.
2. As to the Tribunal's conclusions regarding the applicant's risk of re-offending, the applicant referred to the Tribunal's findings at TD[67]: Conclusions about risk …

• given the seriousness of the Applicant's offending over a number of years, I do not accept that undertaking limited duration therapy, counselling [sic] and education about the causes underlying his offending, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision;

1. The applicant submitted that there was a constructive failure to exercise jurisdiction for the following reasons:
2. The limited duration therapy, counselling and education was a result of the limited programs which were offered. The applicant submitted that he had signed up for substance abuse classes but that the time required to engage with the classes was of a longer duration than the length of his period of incarceration;
3. There is a waiting list and limited online rehabilitation in detention; and
4. The applicant's engagement with the classes was limited due to accessibility and timeframes whilst being in detention. The statement "over a compressed time period" "undermines [his] engagement in rehabilitation as it minimises and discredits [his] rehabilitation."
5. At the hearing, the applicant also submitted that due to financial constraints, he was not able to pay for a forensic psychologist's report.
6. The Minister submitted that the Tribunal was aware that the applicant was undertaking courses in detention on the basis that it made reference to courses undertaken in a "controlled environment," as distinct from those undertaken in the community which it elsewhere described as an "uncontrolled environment." Accordingly, there is nothing to suggest that it was not aware of the limitations such an environment imposes upon the available courses. This is so despite the fact that the applicant did not advance any "clearly articulated argument" about the difficulty in obtaining counselling before the Tribunal.
7. The Minister also submitted that it was open to the Tribunal to express any doubts it had about the effectiveness of the rehabilitative courses, noting that it made no criticism of the applicant's enthusiasm when engaging in the courses at TD[67].
8. I agree with the Minister's submissions. There is nothing to suggest that the Tribunal overlooked that the courses were undertaken in detention and, as such, there were limitations associated with that. At TD[52], the Tribunal listed a number of counselling and education courses which the applicant engaged in "while incarcerated or in immigration detention". Further, as submitted by the Minister, the statement "in a compressed time period" used in TD[59], was referring to several one hour sessions over a two-week period. There is nothing to suggest that this was used to undermine the applicant's engagement in rehabilitation. In any event, it was open to the Tribunal to make findings about the applicant's rehabilitation on the material before it.
9. As to the applicant's submission that he was not financially able to obtain a forensic psychology report, I note that this was raised by the applicant at the Tribunal hearing. As such, it was a matter that was before the Tribunal. It was therefore open to the Tribunal, having regard to the material before it, to make the finding as to the applicant's risk of re-offending at TD[67].
10. As to the applicant's argument that there was a constructive failure to exercise jurisdiction with respect to the weight given to rehabilitative activities, the applicant referred to an extract of the Minister's Statement of Facts, Issues and Contentions which was set out in the Tribunal's Decision at TD[54] as follows: However, the Respondent submits that minimal weight can be given to the Applicant's rehabilitative activities when considering his risk of reoffending. Most of the activities have been engaged in very recently (in the past few months), have not been sustained for a very long period of time, and the Applicant's progress has been untested in the community.
11. The applicant's contention was that the statement was an "improper" minimisation of his rehabilitative activities given the time available to him in which to undertake such activities. The applicant again contended that the activities were engaged in recently as he had only been in detention for less than a year and was on the waiting list to engage with other counselling. He also submitted that the statement that his progress is untested is "contradictory" as he has not been given an opportunity to test it. Further, the applicant submitted that he had been assessed to be of low risk, evidencing his progress in rehabilitation.
12. The applicant made further submissions as to his rehabilitation efforts which did not point to a jurisdictional error and sought to engage in impermissible merits review.
13. The Minister correctly submitted that the extract to which the applicant referred comprises part of the Minister's submissions before the Tribunal, rather than a finding made by the Tribunal. In that event, the Minister contended that the Tribunal's reasoning and findings were open to it and the applicant is instead seeking to review the merits of the Tribunal's decision.
14. I do not consider that there was a constructive failure to exercise jurisdiction with respect to the weight allocated to the applicant's rehabilitation efforts. In a judicial review application, the Court must be cautious not to engage in a review of the merits of the Tribunal's decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35 -36; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 528 [51]. It was open to the Tribunal to make the findings it made in TD[67] including as to the weight it attributed to the applicant's rehabilitation efforts.
15. Further, also in my view, correctly, the Minister argued that there is no illogicality in the Tribunal finding that the applicant's progress had been untested outside of a controlled environment at TD[77]. It was simply a statement of fact. To the extent that the applicant suggests that the finding was illogical, I refer to the case of Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22 wherein Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed at 575 that, "determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future". Accordingly, it was appropriate for the Tribunal to have regard to past conduct as an indicator of what might occur in the future. It therefore cannot be said that the Tribunal's finding is illogical. It was open to the Tribunal to consider the applicant's past conduct when he was in an "uncontrolled environment" in its evaluation.
16. Therefore, grounds one and three do not succeed.

Ground Two

1. By ground two, the applicant claims that the Tribunal took into account an irrelevant consideration. The applicant provided no particulars as to the asserted irrelevant consideration and made no submissions on this ground.
2. As submitted by the Minister, the lack of particularisation is reason enough for the ground to be dismissed: CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] - [22]; Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736 at [31] - [32].
3. Ground two must fail.

Ground Four

1. The fourth ground advanced by the applicant is that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the applicant's case. To that end, the applicant referred to a statement from the Minister's Statement of Facts, Issues and Contentions extracted at TD[54] in relation to the report of Mr Greg Hutcheon (Psychological Report): …Although the Brief Psychological Report indicates that the Applicant engaged well in the psychology sessions and presents as highly motivated to remain engaged in treatment and supportive programs and activities, it does not provide any direct opinions in relation to the Applicant's risk of reoffending. Further, the report was prepared only recently on 29 April 2023 and so the effects of the Applicant's willingness to engage with rehabilitation mentioned in the Brief Psychological Report remains untested in the community. (Citations omitted.)
2. In relation to this ground, the applicant appeared to rely on the same submissions advanced for the other grounds he asserts. At the hearing, the applicant submitted that the Tribunal did not give weight to what the Psychological Report stated with respect to his engagement in rehabilitation.
3. In the Minister's submission, this ground must fail for the same reasons as those argued in respect of the other grounds. Further, the Minister submitted, in any event, there is no error linked to the Psychological Report and the findings of the Tribunal at TD[67].
4. The statement about which the applicant complains, at TD[54], is again not the Tribunal's findings, rather it is the Minister's submissions.
5. In my view, it is clear that the Tribunal did not fail to give proper, genuine and realistic consideration to the merits of the applicant's case with respect to its consideration of the Psychological Report. It is evident that at TD[49] - [50], the Tribunal set out parts of the Psychological Report, including as to the treatment plan and progress of the applicant, as well as considering the applicant's rationale for engaging Mr Hutcheon. To the extent that the applicant submits that the Tribunal ought to have given more weight to the Psychological Report, that is a matter for the Tribunal and not the Court on a judicial review application.
6. The applicant also referred to the Tribunal's finding at TD[88] as to the weight conferred on Primary Consideration 3: In weighing the applicable factors, I find that Primary Consideration 3 weighs heavily, but not determinatively, in favour of revoking the decision to mandatorily cancel the Applicant's visa.
7. The applicant contended that the statement "not determinatively" is contradictory on the basis that while on the one hand it purports to attribute weight to the consideration, "at the same time it doesn't." At the hearing, the applicant also appeared to submit that the Tribunal's finding was contradictory as the applicant's offending should not have outweighed the applicant's contributions to the Australian community. The Minister submitted, and I agree, that there is no contradiction in this statement. This an orthodox statement made to express the Tribunal's finding that, while Primary Consideration 3 weighed heavily in favour of revocation, it was ultimately not determinative of the outcome of the review. To the extent that the applicant takes issue with the Tribunal's attribution of weight, that is a matter for the Tribunal and not the Court on this application.
8. In his written submissions in reply and at the hearing, the applicant made submissions as to the Tribunal's findings with respect to the extent of impediments if removed from Australia. The Minister noted that this matter was not raised in the applicant's application. The applicant was previously permitted to amend his originating application but did not do so. At the hearing, I asked the applicant whether he wished to amend his application to add an additional ground. The applicant did not seek to amend his application.
9. Accordingly, ground four does not succeed.

conclusion

1. It is for those reasons that the application is dismissed. The applicant must pay the first respondent's costs as agreed or taxed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.