Consideration
72 In Sullivan at [119]-[121], Flick and Perry JJ said:
[119] Although the Tribunal is not obliged to accept evidence which is not contradicted by means of cross-examination or otherwise, it has long been recognised that the rejection of such evidence may amount to a denial of procedural fairness: cf Hoskins v Repatriation Commission (1991) 32 FCR 443 at 449-450 per Pincus J. Equally a failure to provide adequate or any reasons for rejecting unchallenged evidence may constitute an error of law: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588 per Samuels JA. See also: SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 at [79] per Katzmann J; Ashby v Slipper (2014) 219 FCR 322 at [78] per Mansfield and Gilmour JJ. These are but two of the already accepted means whereby this Court can ensure that the Tribunal is not given an untrammelled power to make findings of fact free of all judicial scrutiny. Without being exhaustive, another constraint is the need for findings to be neither "irrational" nor "illogical": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ. A "failure rationally to consider probative evidence", it has been said, "is not the same kind of error as a simple mistake of fact": Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [26] per Black CJ, Von Doussa and Carr JJ.
[120] Within these already accepted principles, the Tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have "serious" consequences to a party, or "grave" consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on "appeal".
[121] Cases may be found where the Tribunal has applied the decision in Briginshaw. But these cases are nothing more than the Tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of s 33(1)(c), it will be recalled, simply provided that the Tribunal is not "bound" to apply those rules; it is not a prohibition upon the Tribunal applying those rules if it sees fit.
73 On the issue of the judgment of criminal guilt, in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [184]-[187] Colvin J noted that it was important to bear in mind an administrative decision-maker does not undertake a fact-finding task of the same character as that undertaken by a court and that evidence in the Tribunal is simply the material before the Tribunal, however received. His Honour continued that the weight to be afforded particular material depends upon the seriousness of the allegation the decision-making was asked to accept, any inherent unlikelihood of its occurrence in the gravity of the consequences that may flow from making the finding. His Honour referred to the observations by Dixon J in Briginshaw at p 363 that "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained".
74 In Briginshaw at p 363, Dixon J continued that "When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is to be given to the presumption of innocence and exactness of proof is expected".
75 The applicant contends that the Tribunal demonstrated no appreciation of the fundamental precepts central to the administration of the criminal justice system before concluding that the allegations were made out on the limited evidence before it and that any assessment of the logicality, rationality and reasonableness of the factual findings should be viewed accordingly.
76 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130], Crennan and Bell JJ in considering the state of satisfaction required under s 65 of the Act (as is the case here) said:
… accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
77 At [135] their Honours continued:
…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
78 The Minister submitted that at its heart, ground one involves an attempt to impermissibly persuade the Court to review the merits of the Tribunal's factual findings and that the Court is being asked to overturn findings of fact on judicial review which requires a standard of illogicality or irrationality which are described in terms of being "extreme" in the sense that no rational or logical decision-maker could make the finding in question: SZMDS at [130].
79 I do not consider the applicant was contending that it was necessary for the Tribunal to embark upon a consideration of the issues before it to the required criminal standard. That is clearly not the case.
80 I am acutely aware that the role of the Court on judicial review is not a merits review. So too, I am acutely aware that a court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130].
81 In assessing the material before it, the Tribunal had to afford it such weight that reflected the grave seriousness of the allegations the Tribunal Member was asked to accept. In these particular circumstances, that weight was also informed by the fact that the applicant was self-represented, had an extensive history of alcohol abuse, had an apparent low level of literacy, that questions had arisen during the applicant's examination by psychiatrists as to the level of his cognition arising from past trauma and the grave consequences that would flow from arriving at a conclusion that the applicant had committed offences for which he had not been prosecuted far less convicted.
82 The Full Court's statements in Sullivan at [119]-[121] are instructive. The manner in which the Tribunal Member arrived at the central conclusion on limited evidence, with a self-represented applicant with an apparent low level of literacy, and in circumstances where the applicant had not been prosecuted, that nonetheless the applicant had committed two offences of rape, one offence of indecent assault and one offence of assault, demonstrates a lack of caution in evaluating the factual foundation for the Tribunal Member's decision.
83 Whereas there was material before the Tribunal Member as to the applicant's prior convictions, the material relied upon by the Tribunal Member in the circumstances described to make the findings of fact which quite clearly formed part of the Tribunal Member's reasoning and which are impugned by the applicant (being the four alleged offences) are findings which, in my view, no rational or logical decision-maker could make in the particular circumstances, far less use those findings to reach the conclusion that the applicant is a danger to the Australian community: SZMDS.