Consideration and disposition
19 The statutory framework within which a decision-maker exercises its statutory power is of critical importance when considering what procedural fairness requires. Also, the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
20 In the present case, as in SZBEL, no submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act; attention was rather directed principally to the particular circumstances of the case.
21 The appellant's application to the Tribunal for review of the delegate's decision was made under s 500(1)(ba) of the Act. Since it was common ground that appellant did not pass the character test, the issue for determination under s 501CA(4)(b)(ii) of the Act was whether there was "another reason why the original decision should be revoked." The mandatory relevant considerations for such a decision were set out in Direction No 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which in turn identified as a primary consideration "the protection of the Australian community from criminal or other serious conduct." Within that primary consideration, the decision-maker had to have regard to "the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending." Those were matters made explicit in Direction No 79 and they were well appreciated by the appellant's counsel and solicitor before the first and second Tribunal hearings which is evident from the structure of the submissions that were made that covered these matters.
22 Thus, the requirement of the rules of procedural fairness that "the party affected be given the opportunity of ascertaining the relevant issues", as referred to in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 and affirmed in SZBEL at [32], was fulfilled. It is the other requirement identified there, namely that the person affected by the decision "be informed of the nature and content of adverse material" that is engaged in this case.
23 In SZBEL it was found that the appellant had not been accorded procedural fairness. That was because nothing had been said to the appellant by the Tribunal that would have revealed to him that the points on which the Tribunal's decision ultimately turned were live issues in the case (at [43]). It was held (at [44]) that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or to make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
24 Turning to the present case, in our view there is no error in the reasoning of the primary judge. That is because we share his Honour's conclusion that the absence of "a structured and actuarial approach to an assessment of the risk of reoffending" by Mr Cicchini was by no means determinative in the Tribunal's reasoning. The Tribunal was troubled by having insufficient evidence and no contemporaneous evidence on the question of the risk of the appellant reoffending. Fairly read, what the Tribunal said about the absence of a structured and actuarial approach to an assessment of the risk of reoffending was that had it had such evidence it would have been helpful. That is to say, what it said on the topic was not so much a criticism of Mr Cicchini's evidence but an identification of what it did not have and what might have made things different. As far as it went, the Tribunal accepted Mr Cicchini's evidence - it accepted Mr Cicchini's diagnosis of the appellant, its origins in the traumatic events surrounding his childhood and that the appellant's mental health had improved. The Tribunal's remarks that the appellant seeks to impugn go only to identifying the nature of Mr Cicchini's evidence, and its limitations, rather than criticising it on some fresh or previously unidentified basis.
25 The reality is that one can put what was said by the Tribunal about the absence of a structured and actuarial approach to an assessment of the risk of reoffending to one side, and one is still left with the Tribunal being dissatisfied with the value of Mr Cicchini's evidence on the material question. That is because his views had been expressed more than two years previously, he had not given evidence so his views could neither be tested nor updated, he did not express a direct view on the material question of risk of reoffending, and in any event he was not in a position to do so because he was not familiar with the appellant's history of offending. Indeed, Mr Cicchini's own evidence had been that he had assumed that some other specialist would be responsible for that task. Understood in that light, the Tribunal's excursus on a structured and actuarial approach was surplusage and immaterial.
26 In short, the criticism, if it was that, of Mr Cicchini's evidence on the basis that he failed to adopt a structured and actuarial approach was not really to the point in the Tribunal's assessment of Mr Cicchini's evidence. To the point was that the evidence did not directly address the relevant question, being the risk of recidivism, and to the extent that it said anything relevant to that question it was out of date, he had not been made available for cross-examination and he had not studied the appellant's criminal history.
27 With full appreciation of the importance of the issue of the risk of reoffending, the appellant was content to rely on what Mr Cicchini had put in writing, both in the form of his report and his earlier testimony, and to make submissions about the weight to be attached to it, without calling him as a witness. In those circumstances, the Tribunal cannot be criticised for not having put to Mr Cicchini any concerns as to the inadequacy or insufficiency of Mr Cicchini's evidence that it might have had.
28 Moreover, there was no "practical injustice" in the approach taken by the Tribunal. See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38] per Bell, Gageler and Keane JJ. The appellant was on notice that his risk of reoffending was at issue before the second Tribunal and that Mr Cicchini's report and previous oral evidence were not accepted by the Minister. Indeed, the first Tribunal had noted that Mr Cicchini had confirmed that he was unaware of the appellant's criminal history and that his role was not to provide a forensic examination of that criminal history. The first Tribunal had concluded that it was highly probable that the appellant would inflict violence in the future and that his recent violent conduct was an indication of his future conduct. It cannot be suggested that the potential weakness of relying on the same material could come as a surprise.
29 Prior to the commencement of the remitted proceeding, the Tribunal and the Minister had been given to understand that the applicant would be calling Mr Cicchini to give updated evidence, but in the event he called neither him nor any other expert to more directly address his risk of reoffending. In those circumstances, the appellant was not prevented in any way from presenting a case on that issue and the case that he did present was, for the reasons given by the Tribunal, extremely weak. Mr Cicchini never expressed a direct opinion on the appellant's risk of reoffending and he eschewed any suggestion that he had been tasked with doing so. Indeed, it can hardly be said that he could have expressed an opinion, expert or otherwise, upon which it was open to the Tribunal to place any weight when he had not studied the appellant's history of offending.
30 For those reasons, the appeal should be dismissed. There is no apparent reason why the appellant should not pay the costs of the appeal.
31 In the circumstances, the appeal should be dismissed with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Kerr, Stewart and Halley.