Did the tribunal undertake the risk assessment required by the Direction?
28 Mr Tuitaalili submitted (at [43]) that the tribunal made "a conclusory finding" that the offences he committed were serious "given the potential to kill or injure" but failed to assess the seriousness and nature of his conduct as is required by paragraph 10.1(2)(a) or "to locate his conduct on any scale of seriousness". He argued that the tribunal's failure to expressly refer to paragraph 10.1.1(1) and the lack of evidence to support a finding under it give rise to the inference that the tribunal did not consider that it applied. He also argued that the tribunal failed to take into consideration the past sentences imposed on him, which demonstrates a lack of "active intellectual engagement with the question [of] how the factor or consideration" (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1) was taken into account in making an assessment under paragraph 10.1.1(3). In particular, Mr Tuitaalili contended that, although the tribunal had extracted parts of the remarks of Tupman DCJ when sentencing him in September 2008, it "failed to address or consider how, or to what extent, the sentences imposed on Mr Tuitaalili were indicative of the seriousness of [his] conduct" (original emphasis).
29 The submission must be rejected.
30 First, the tribunal did not fail to assess the nature and seriousness of the conduct. It noted that paragraph 10.1.1(2) listed examples of categories of offences and conduct considered to be serious and accepted Mr Tuitaalili's contention that the offences he committed were not among them. But it pointed out (correctly) that the categorisation of the offence is not the only matter to be taken into account in the assessment of the seriousness of the person's conduct under the Direction. It specifically referred to the terms of paragraph 10.1.1(3), which, it will be remembered, provides that the sentence imposed for an offence is considered indicative of the seriousness of the conduct and that due regard must be given to the extent of the person's criminal history. It noted that in the 12 years since Mr Tuitaalili has been in Australia he was convicted of at least 29 offences (the most recent of which it described in some detail) and sentenced to approximately nine years in prison, although he had not served the full terms. There can be no doubt that the tribunal considered both the nature of the conduct and its seriousness.
31 It is true that the tribunal did not locate Mr Tuitaalili's conduct on a scale of seriousness but the Direction did not require it to do so. The same argument was put and rejected in Minister for Immigration and Citizenship v Taufahema (2010) 114 ALD 537 at [28].
32 In the case of the October 2007 offences for which Mr Tuitaalili was sentenced in September 2008, the tribunal extracted a passage from the judgment on sentence in which Tupman DCJ noted that the offence of using the vehicle with the intention of preventing lawful apprehension was obviously serious and "a relatively serious incidence [sic] of this particular offence because of the number of people, both drivers in other vehicles and pedestrians and workers at the car wash, who were put at risk because of the actions of the prisoner".
33 Secondly, contrary to the submission, in [41] of its reasons the tribunal did in fact expressly refer to paragraph 10.1.1(1). Therefore, the first premise for the inference Mr Tuitaalili asks the Court to draw is not made out. Neither is the second premise. The tribunal referred to some of that evidence at [43]:
Mr Tuitaalili has been charged with dangerous driving on numerous occasions and with "using an offensive weapon" to avoid arrest twice. He has been convicted of driving while disqualified on at least 10 occasions. These are serious offences, given the potential to injure or kill innocent pedestrians or drivers and their passengers, and it has been fortunate that no serious accidents have been caused by Mr Tuitaalili's conduct to date.
[Emphasis added.]
34 Although the tribunal did not in this passage refer to the custodial sentences imposed on Mr Tuitaalili, on a fair reading of its reasons it could not be said that it did not take them into account. At various places it mentioned them. See, for example, [2], [21], [29], [42], and [43]. At [68] the tribunal noted that a substantial majority of his offences were "at the lower end of the scale in seriousness" but that "the key concern" is "the frequency and persistent nature" of the offending. As I mentioned earlier, in [42] it noted that Mr Tuitaalili had been sentenced to a total of approximately nine years in prison. Reading the judgment as a whole it could not be said that the tribunal did not regard that as serious. In the above passage the tribunal expressly adverted to his disqualification from driving, which was a common feature of his sentences, culminating in the habitual traffic offender declarations. In context, the reference to being "charged with" offences should properly be taken as a reference to being sentenced for the offences.
35 I accept that the tribunal might have considered the various sentences in more detail in this paragraph or generally in wrestling with the statutory task but I am not satisfied that there has been a want of active intellectual engagement with the relevant question. As the Minister intimated in his submissions, Mr Tuitaalili's approach offends the warning given by Lockhart J in Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 and repeated often since (e.g. in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) that the reasons for an administrative decision under review are not to be construed minutely and finely with an eye* keenly focussed on the perception of error. *See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Heydon J at n 73.
36 Accordingly, I am not satisfied that the tribunal failed to address the seriousness and nature of Mr Tuitaalili's conduct contrary to paragraph 10.1(2)(a).
37 Mr Tuitaalili also submitted that the tribunal failed to "engage with the individual factors relevant to assessing the combined level of risk of harm under paragraph 10.1(2)". The reference to "individual factors" is a reference to the seriousness and nature of the relevant conduct on the one hand and the risk that the conduct may be repeated on the other. He contends that the absence of any real assessment of the seriousness of his conduct meant that the tribunal was not in a position to assess the risk based on the prospect of recidivism and the seriousness of the conduct.
38 Having regard to the view I have taken that the tribunal did assess the seriousness of Mr Tuitaalili's conduct, this submission must also be rejected.
39 In considering the risk of the conduct being repeated, the tribunal said (at [46]) that it was relevant to consider Mr Tuitaalili's history of repeat offending, both in New Zealand and Australia, and the fact that many of the offences were committed when he was on bail or parole. It referred to the observation made by Tupman DCJ in September 2008 that Mr Tuitaalili's prospects of rehabilitation "could not be seen as good". It noted (at [47]) that his criminal history shows that when his condition is not being treated and he is not taking his medication and taking illicit drugs, there is a high risk he will reoffend.
40 The tribunal referred to his evidence that he has been compliant in taking his medication, and that, since returning to live with his mother in Brisbane, he has had no problems and was "feeling good". It also noted his evidence that he regrets his past and had changed for the better. Mr Tuitaalili told the tribunal that he self-medicated when he was feeling confused or depressed, recognised that this only made things worse and promised he would not do it again. The tribunal accepted (at [49]) that he was ashamed of his past and was attempting to rehabilitate himself by staying with his family and taking his medication. But it also noted a letter from his case manager at Logan Central Mental Health Service dated 30 July 2010 that he was no longer a patient at the service. This evidence is of some significance in that Mr Tuitaalili's evidence was that it was a doctor at that Service who prescribed his medication. The tribunal hearing was six and a half months after the date of the letter from Logan Central Mental Health Service. Still, Mr Tuitaalili testified that since he left Logan he would see a local doctor "if I need to get more medication" and he told the tribunal that he had never missed out on taking his medication morning and night since (as I read his evidence) it was prescribed. Later, however, he qualified that statement, saying that the only time he did not take it was when he was "doing other drugs" and would then forget.
41 The tribunal referred to Mr Tuitaalili's history of failing to take his medication and of self-medicating at several points in its reasons. In particular, at [50] it noted the opinion of a probation and parole officer in April 2006 that he would benefit from professional support to address these issues but would need to commit to the change in order to rehabilitate himself. It then stated:
There is no evidence Mr Tuitaalili has sought ongoing professional support, in fact there is evidence to the contrary. Mr Tuitaalili told the Tribunal he has not been seeking any treatment, apart from his medication, as he does not consider he needs treatment or counselling. He said he has his mother now and she is providing him with all the support he needs.
[Emphasis added.]
42 The tribunal noted that Mr Tuitaalili had returned to live with his mother a few years earlier but despite family support he "fell into a bad crowd" and left home. In the absence of evidence to the contrary, such as a report from a health care professional about Mr Tuitaalili's current condition and prospects or evidence of a sustained period of abstinence from drugs and compliance with medication, (at [51]) the tribunal accepted a submission by the Minister that it was possible this would happen again and, if so, there was "every prospect" he would reoffend. At [47] the tribunal had said that:
Mr Tuitaalili's criminal history shows that when his condition is not being properly treated, he is not taking his medication and he is taking drugs, there is a high risk he will reoffend.
43 It went on to find (at [69]) that there was a high risk that Mr Tuitaalili would reoffend if he does not take his medication and/or takes illicit drugs. It noted that this was his history since he was at least 16 years old. It acknowledged that his condition was not diagnosed until some years later, but it observed that he had been aware of his illness and the potential impact of failing to take his medication and "self-medicate" since at least April 2006. Despite this, it remarked, he continued to be non-compliant and to further offend. It was not satisfied on the evidence that these issues had been resolved or that he had sufficient insight to appreciate the importance of treatment and medication.
44 Mr Tuitaalili submitted that none of the three factors that gave rise to the high risk was present. He argued that the first - the lack of adequate treatment for his mental illness - was either not supported by or contrary to the evidence. He said the second - the failure to take his medication - contradicted the tribunal's finding that he was taking it. And he claimed that the tribunal implied by its reference to a sustained period of abstinence from drugs at [51] that it accepted that the third factor - illicit drug-taking - did not exist.
45 Mr Tuitaalili also submitted that the tribunal's assessment of risk was flawed because the tribunal had no proper basis for the finding at [50] that there was no evidence that he had sought ongoing professional support and that there was evidence to the contrary. Alternatively, he submitted the tribunal failed to take into account relevant material and evidence when drawing its conclusion. He pointed to evidence that he had "access to, and the support of treatment, health service professionals and counselling".
46 Whilst it may be accepted that the question of whether there is any evidence of a particular fact or whether inferences can be drawn from facts found or agreed is a question of law (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355), it is doubtful whether this submission raises any question of jurisdictional error. Not all errors of law are jurisdictional. In any event, it seems to me that there was a factual basis for the tribunal's findings.
47 Mr Tuitaalili's evidence was that he was taking a combination of Seroquel, an anti-psychotic, and Epilim, a mood stabliliser; both of them prescription drugs. The tribunal referred to this evidence. But on a fair reading of its reasons, it is evident that its concern was with Mr Tuitaalili's failure to seek professional psychiatric or psychological treatment or counselling to address the risk that he would stop taking the medication and self-medicate on illicit drugs as he had in the past.
48 Mr Tuitaalili submitted there was evidence that he had undertaken counselling but the references he gave were to counselling at a Buddhist monastery, which was plainly not what the tribunal had in mind. Indeed, Mr Tuitaalili acknowledged in his evidence that there was a risk based on his past behaviour that he would again have trouble dealing with grief issues and that it was up to him to see a counsellor but that, although he knew that counselling was available at the Logan City Community Mental Health Clinic, he had never done so:
I've never really gone to see a counsellor. I've always thought that I didn't need one. I don't need one.
49 I reject the proposition that the tribunal's reference at [51] to a sustained period of abstinence from drugs suggested that the third risk factor (illicit drug taking) did not exist. The tribunal's reference was to the lack of evidence of a sustained period of abstinence.
50 Mr Tuitaalili contended that the tribunal's concerns regarding his risk of recidivism were based on the absence of evidence to the contrary, such as a report from a health care professional about his current condition and prospects. He submitted that this revealed error because it was a reversal of the onus. He asserted that paragraph 10.1.2(2)(b) of the Direction only required that "greater weight" be given to evidence from independent and authoritative sources, not that weight be given to the absence or otherwise of such evidence. This submission does not raise any question of jurisdictional error and, in any event, is misconceived. As I indicated earlier, the tribunal's concerns about the risk of reoffending were based, not merely on the absence of such evidence, but also on Mr Tuitaalili's history and the lack of evidence of a sustained period of compliance with medication and abstinence from drugs. As the Minister submitted, in substance the tribunal was merely saying that his past conduct was a guide to the future in the absence of objective evidence that the circumstances had changed. This kind of reasoning is unexceptionable and accords with common sense. See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
In many, if not most cases, 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. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.