AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1564
•22 December 2022
FEDERAL COURT OF AUSTRALIA
AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564
File number: VID 530 of 2021 Judgment of: BROMBERG J Date of judgment: 22 December 2022 Catchwords: MIGRATION – section 5(1) definition “serious Australian offence”; s 5M; s 36(1C)(b) of the Migration Act 1958 (Cth) – judicial review of AAT decision to affirm rejection of application for protection visa rejected because applicant held to be “a danger to Australian community” – whether applicant had been convicted of an offence “punishable by … imprisonment for a maximum term of not less than three years” – whether sentencing limitations imposed on New South Wales Children’s Court relevant – whether “particularly serious crime” in s 5M is confined to the subsidiary definitions of “serious Australian offence” and “serious foreign offence” – whether AAT failed to consider important evidence or submission of substance – application upheld in part. Legislation: Children (Criminal Proceedings) Act 1987 (NSW), ss 31(1), 31(3) and 33(4)
Crimes Act 1900 (NSW), s 86(2)(a)
Criminal Procedure Act 1986 (NSW)
Migration Act 1958 (Cth), ss 5(1), 5M, 36(1C), 36(2C), 501(6) and 501(7)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases cited: DOB18 v Minister for Home Affairs (2019) 269 FCR 636
KXXH v Minister for Immigration, Citizenship, Migrant, Services and Multicultural Affairs [2022] FCAFC 111
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417
R v Duncan (2007) 172 A Crim R 111
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 98 Date of hearing: 4 February 2022 Counsel for the Applicant: Mr J Maloney Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr C Tran with Mr J Barrington Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
VID 530 of 2021 BETWEEN: AFF20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
22 DECEMBER 2022
THE COURT ORDERS THAT:
1.The decision of the second respondent made on 12 August 2021 in matter number 2020/0985 be quashed.
2.The applicant’s application for review of the decision of the delegate of the first respondent made on 14 January 2020 be heard and determined by the second respondent according to law.
3.The first respondent pay the applicant’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The applicant seeks judicial review of a decision of the second respondent (Tribunal) which affirmed the decision of a delegate of the first respondent (Minister) not to grant him a protection visa. The delegate refused the applicant a protection visa under s 36(1C)(b) of the Migration Act 1958 (Cth) (Act) on the basis that the applicant, “having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community”.
The applicant agitates three grounds in support of his application for judicial review. By the first and second ground, the applicant contends that the Tribunal misapplied s 5 and s 5M of the Act. The first ground turns on whether the Tribunal could permissibly find that the applicant had been convicted of an offence “punishable by … imprisonment for a maximum term of not less than 3 years” (as provided for in the definition of “serious Australian offence” in s 5(1) of the Act) in circumstances where he was convicted by the New South Wales Children’s Court, a court which cannot ordinarily impose any sentence of imprisonment. The second ground turns on whether the words “particularly serious crime” in s 5M are confined to the subsidiary definitions of “serious Australian offence” and “serious foreign offence”. By the third ground, of which there are two limbs pressed, the applicant contends that the Tribunal misconstrued or misunderstood important evidence or a submission of substance.
For the reasons that follow the applicant has failed to substantiate the first and second grounds, but has succeeded on the first limb of the third ground.
BACKGROUND AND PROCEDURAL HISTORY
The applicant is a national of Afghanistan born in 1991.
His story is tragic. As a child he witnessed members of his family being beaten, kidnapped and murdered. He was later kidnapped for a period of 3 years during which he suffered sexual abuse, torture and threats of death at the hands of his captors and witnessed other kidnapped children suffer the same treatment.
By the time of his arrival in Australia in 2005, the applicant, aged 14, appeared to be suffering from post-traumatic stress disorder, mood dysregulation and psychotic symptoms, including visual, auditory and olfactory hallucinations. He subsequently left school and began using illicit substances.
In 2008, the applicant was convicted of taking or detaining a person with the intention of obtaining an advantage and in the company of another under s 86(2)(a) of the Crimes Act 1900 (NSW) (the 2008 conviction). Section 86(2)(a) of the Crimes Act carries a maximum penalty of 20 years’ imprisonment. The applicant was sentenced to a control order for a period of 2 years by the Children’s Court.
In November 2009, the applicant was convicted of four firearms offences and sentenced by the Children’s Court to a control order for a period of 2 years for three of the offences and 12 months for the fourth.
In 2014, the District Court of New South Wales made a qualified finding of guilt in the absence of conviction for the charge of firing a firearm at a dwelling-house with reckless disregard for the safety of any person in contravention of s 93GA of the Crimes Act. The qualified finding of guilt was made because the applicant was found to be unfit to stand trial.
In 2017, the applicant was sentenced to 3 years and 7 months’ imprisonment, with a non-parole period of 1 year and 9 months, for two further firearms offences.
During the course of his offending the applicant’s visa was cancelled. In March 2017, the applicant applied for the protection visa. A delegate of the Minister initially found that the applicant did not meet the criteria for the grant of a protection visa. That decision was set aside by the Tribunal and remitted to a delegate of the Minister who subsequently refused to grant a protection visa on the basis that the applicant did not meet s 36(1C) of the Act.
The applicant sought merits review of that decision before the Tribunal. In August 2021, the Tribunal affirmed the decision of the delegate under review. The applicant seeks judicial review of the Tribunal’s decision in this Court.
CONSIDERATION
For present purposes it is convenient to set out s 36(1C) of the Act and related provisions before addressing each ground of review which was pressed, noting that one limb of ground 2 was not pressed in part and two limbs of ground 3 were not pressed.
The provisions of the Act that require primary consideration are s 36(1C) together with two definitional provisions. Section 36(1C) establishes a legislative criterion for the grant of a protection visa in the following terms:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The words “particularly serious crime” are defined by s 5M of the Act:
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, s 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
Section 5(1) defines a “serious Australian offence” in the following terms:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
Ground 1 – Was the offence heard by the Children’s Court a “serious Australian offence”?
An issue before the Tribunal was whether, in the terms required by s 36(1C)(b), the applicant “had been convicted by a final judgment of a particularly serious crime”. The Tribunal determined that that condition was satisfied by the 2008 conviction, having determined that the 2008 conviction was “a serious Australian offence” within the meaning of s 5M and, in turn, the s 5(1) definition of “a particularly serious crime”. The Tribunal so determined because it came to the view that the 2008 conviction was for an “offence … punishable by imprisonment for a maximum term of not less than 3 years” within the meaning provided for in para (b)(iii) of the s 5(1) definition of “serious Australian offence”.
By the first ground, the applicant contended that he had not been convicted of a “serious Australian offence” because he had not been convicted of an offence which was “punishable by imprisonment for a maximum term of not less than 3 years”. In his written submission, the applicant also pursued a second aspect of the first ground by which he contended that his offending did not constitute a serious Australian offence because it did not “involve violence against a person”, but that was abandoned by the applicant during oral argument.
The 2008 conviction was dealt with by the Children’s Court. The applicant submitted that under s 33(4) of the Children (Criminal Proceedings) Act 1987 (NSW), the Children’s Court cannot impose a sentence of imprisonment. It followed, so the applicant contended, that the applicant had not been convicted of an offence “punishable by” a maximum term of imprisonment of not less than 3 years because he was sentenced by the Children’s Court which cannot impose any sentence of imprisonment. That argument did not find favour before the Tribunal.
The Tribunal referred to the 2008 conviction and the applicant’s contravention of s 86(2)(a) of the Crimes Act in 2008, which carried a maximum penalty of 20 years’ imprisonment. Contrary to the submissions of the applicant, the Tribunal concluded that “this offending squarely falls within the definition of a serious Australian offence because the State Parliament has determined that is punishable by a maximum 20-year prison term”.
In my respectful opinion, the Tribunal did not err in arriving at that conclusion.
To resolve the issue in contest it is necessary to construe the definition of “serious Australian offence” in s 5(1) and in particular the words “the offence is punishable by” in para (b) of that definition.
The applicant’s argument was premised on the word “offence” in para (b) of the definition meaning the particular offending by a person rather than the particular crime specified by a statute as an offence. The applicant contended that in order to understand “offence” as defined, it is necessary to look to the conduct in relation to which a person was charged and convicted and the regime under which that was carried out. On that argument, as I understood it, the applicant contended that the words “the offence is punishable by” direct attention to the maximum sentence available in respect of the particular conduct for which a person has been charged and convicted. Accordingly, so the applicant said, the proper question is what was the most severe sentence possible for the applicant in respect of the offence (by which the applicant meant the offending) for which he was charged and convicted. Given that for the offending which resulted in the 2008 conviction the applicant could not be imprisoned because of the operation of s 33(4) of the Children (Criminal Proceedings) Act, the applicant contended that he had not been convicted of an “offence … punishable by” a maximum term of imprisonment of not less than 3 years.
There is some textual support for construing the word “offence” when used in para (a) of the definition of “serious Australian offence”, as meaning the offending rather than the particular crime specified to be an offence by a statutory provision. The terms of para (a) of the definition suggest that what that paragraph is directed to is whether the particular offending “involves” particular factual characteristics rather than whether the crime specified by the statute “involves” particular elements.
However I need not determine that because, in my view, whether “offence” in the critical phrase “offence is punishable by” is an intended reference to the particular offending or to the particular crime specified to be an offence, the applicant’s construction fails.
The critical words in question are the words “punishable by”. If “offence” means the crime specified as an offence by the statute, the words “punishable by” are directed to the maximum penalty specified by the statute for that offence. If, on the other hand, as the applicant contended “offence” means the particular offending, the words “punishable by” are also directed to the maximum penalty specified by the statute for the offence which the particular offending has engaged and pursuant to which the person was charged and convicted.
It is relevant to understand the purpose of para (b) of the definition. It is clear that the paragraph seeks to provide a legislative criteria. In my view, the paragraph seeks to adopt the seriousness or gravity of the particular offence as the relevant legislative criteria rather than the conduct constituting the underlining offending. That may be contrasted with, for example, the character test and the definition of “substantial criminal record” under s 501(6) and 501(7) of the Act which adopts the length of imprisonment as the relevant legislative criteria and thus, by implication, the seriousness or gravity of the conduct in question. If para (b) of the definition had been intended to use the particular offending conduct for which a person has been convicted to provide the legislative criteria of seriousness, it would have focused upon the sentence actually imposed (as does s 501(6) and (7)) rather than what “the offence is punishable by”.
It is the seriousness of the particular crime specified to be an offence as reflected by the maximum punishment set by Parliament, rather than the seriousness of the offending as reflected by a particular sentence imposed by a court, which provides the criteria intended by para (b) of the definition. That observation is consonant with the legislative language, context and purpose, including because the words “the offence is punishable by” direct attention to the punishment available to be imposed rather than the punishment actually imposed.
The fact that para (b) does not use the punishment actually imposed to provide the criteria for seriousness, strongly supports the proposition that it was intended that the seriousness of the particular statutory offence which the offending has engaged, should provide that criteria.
In other words, the criteria for seriousness is fixed upon general rather than individual considerations. The general consideration chosen is the extent of the maximum penalty prescribed for the particular crime that the offending in question has engaged. The criteria is indifferent to and in no way concerned with any sentencing limitations that may be imposed by reference to mitigating circumstances applicable to particular persons or groups of persons.
All of that tells against the relevance of a bespoke sentencing regime like that provided for by the Children (Criminal Proceedings) Act. The Tribunal was correct to utilise the maximum penalty prescribed for a contravention of s 86(2)(a) of the Crimes Act, to conclude that the 2008 conviction satisfied the requirement in s 36(1C)(b) that the applicant has been convicted of a “particularly serious crime”.
In oral argument, the Minister referred to R v Duncan (2007) 172 A Crim R 111 at [20] where Nettle J said:
20.Mutatis mutandis, the same reasoning applies to s 113A. Thus, where the County Court or the Supreme Court tries a summary offence under that section and convicts the accused, the maximum term of imprisonment to which the court may sentence the offender for that offence is two years. But that does not mean that the two years is “the maximum penalty prescribed for the offence” to which the court must have regard by force of s 5(2)(a) of the Sentencing Act. The phrase is confined to the maximum penalty selected by the legislature as that which should be prescribed for a particular crime. Section 5(2)(a) is in no way concerned with the limitation imposed by s 113A upon the jurisdiction or powers of the sentencing judge, whereby, whatever the nature of the offence, and whatever the maximum penalty prescribed for it, the sentencing judge may not impose a term of imprisonment greater than two years for the offence. Section 113A operates indifferently upon all sentences to be imposed for an indictable offence tried summarily under s 53(1). It does not prescribe a maximum penalty for the offence in the sense in which those words are used in s 5(2)(a) of the Sentencing Act, the specification of a maximum penalty by the legislature for a particular crime. It leaves the statutory maximum penalty untouched, but imposes upon a particular sentencing judge a jurisdictional limit. It imposes its own maximum, not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court.
While these observations were made about a different statutory context, they are nevertheless instructive and tend in support of the constructional conclusion I have reached.
There are a number of other difficulties with the applicant’s submission which need not be determined, but are here noted. The applicant contended that under the Children (Criminal Proceedings) Act the Children’s Court could not impose any sentence of imprisonment. That position was shown not to be a complete account of the statutory scheme. The Minister observed that, at the relevant time, s 31(1) of the Children (Criminal Proceedings) Act provided that if a person is charged with an offence “other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily”. Section 31(3), however, provided a mechanism by which an offence could be tried as an indictable crime under the Criminal Procedure Act 1986 (NSW). If the applicant had been committed for trial under these provisions, then he would have been subject to the maximum penalty of 20 years’ imprisonment for a breach of s 86(2)(a) of the Crimes Act. These observations also undermine a key premise of the applicant’s claim that he had not been convicted of an offence “punishable by” a maximum term of imprisonment of not less than 3 years because he was convicted by the Children’s Court.
Accordingly, the applicant’s first ground of review must fail.
Ground 2 – Is the definition of “particularly serious crime” in s 5M of the Act limited to a “serious Australian offence” or a “serious foreign offence”?
Given my conclusion on ground 1 it is not necessary for ground 2 to be determined. However, as the ground was comprehensively argued what follows is my brief determination of it.
The Tribunal concluded that even in the event that the applicant’s offending did not fall within the meaning of “serious Australian offence” or a “serious foreign offence”, it was nevertheless open to it to determine the applicant had been convicted of a “particularly serious crime”.
The applicant contended that in doing so the Tribunal erred. The applicant submitted that the definition of “particularly serious crime” in s 5M of the Act was limited to the subsidiary definitions of “serious Australian offence” or a “serious foreign offence” (see at [15] above). Accordingly, if the offending did not fall within the meaning of “serious Australian offence” or a “serious foreign offence”, then, so it was said, a person could not be convicted of a “particularly serious crime”.
In support of this ground the applicant referred to the judgment of Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [46]-[48] where his Honour said as a matter of obiter dicta (emphasis in original):
46.The Refugee Convention contains no definition of “particularly serious crime”. In the United States of America, the relevant legislation mirrors Article 33 of the Refugee Convention and thus contains no definition of “particularly serious crime”. In that country, the absence of a definition has led to the gradual development by the Board of Immigration Appeals of criteria for determining what constitutes a “particularly serious crime” and to the recognition that a case-by-case analysis of these criteria, not the name of the crime itself, is determinative: Yousefi v Immigration and Naturalization Service 260 F.3d 318 (4th Cir. 2001) at 329-330.
47.In Australia, because of amendments to the Act made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Act No 135 of 2014), the position is different. …
[His Honour then sets out the definitions of “particularly serious crime” and “serious Australian offence” in s 5M and s 5(1), respectively.]
48.The presence in the Act of these definitions makes it unnecessary to detail the criteria developed in the United States for determining what is a “particularly serious crime.”
The applicant submitted that the dicta of Logan J was to the effect that s 5M does not involve an evaluative approach because particularly serious crime is defined exhaustively as a “serious Australian offence” or a “serious foreign offence”. In my respectful view, the applicant makes too much of Logan J’s observations. It is not at all clear that Logan J was proceeding on the premise the definition of “particularly serious crime” was exhaustive. His Honour was simply stating that the presence of s 5(1) and s 5M made it unnecessary to detail the criteria developed in the United States in the case before him. That does not exclude the possibility of the words “particularly serious crime” in s 5M having some operation independent of the definitions of “serious Australian offence” or a “serious foreign offence”.
While the words of a statute must always be interpreted in context, it has long been established that use of the word “include” ordinarily signifies that a definition is not intended to be exhaustive: see eg, Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471 at [51]-[52] (Allsop CJ, Mansfield and Middleton JJ); YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395. That is not to say that in a particular statutory context the word “includes” could not be exhaustive. The language of a statute taken as whole may compel such an interpretation. However, in my view, this is not such a case. There is no persuasive reason here to depart from the ordinary meaning of the word “includes”.
The strongest indicator that the applicant could point to in favour of a construction of the word “included” as exhaustive was the change from its previous form in s 91U of the Act. Section 91U(1) provided that:
For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australia offence (as defined by subsection (2)); or
(b) a serious foreign offence (as defined by subsection (3)).
The applicant contended that Parliament’s decision to change the language of the Act indicated that a different legal meaning was intended by the revised wording of the provision in s 5M. The difficulty with drawing such an implication was that the Explanatory Memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) explained at [1228] that the change in the form of the provision from s 91U to s 5M was not intended to “change the meaning of current section 91U”. In other words, the Explanatory Memorandum confirmed the plain meaning of the text of the provision, namely, that “included” should be interpreted in accordance with its conventional, non-exhaustive meaning. In doing so, the Explanatory Memorandum negated the implication which the applicant sought to draw.
Finally, the applicant contended that the words in s 5M “has effect as if a reference” implied that the use of “includes” in the definition of “particularly serious crime” was exhaustive. Those words do not, in my opinion, necessarily imply that there is no other effect, which was essentially the applicant’s position.
No other reason for interpreting the word “included” as exhaustive was put to me, nor is any other reason apparent. In the absence of any persuasive reason to depart from the ordinary meaning of the word “included”, I consider that the subsidiary definitions of “serious Australian offence” and “serious foreign offence” in s 5M should not be taken to be exhaustive of the meaning of “particularly serious crime” in s 36(1C)(b) of the Act.
Ground 3 – Did the Tribunal fail to consider the applicant’s evidence regarding his mental health?
There are two limbs to ground 3. The first limb alleges a ‘failure to consider’ error on the part of the Tribunal in relation to evidence about the treatment proposed for various psychological conditions suffered by the applicant.
The alleged error in question is found in the section of the Tribunal’s reasons headed “Conclusion”. There are four paragraphs to that section as follows (emphasis added):
CONCLUSION
260.The Tribunal is satisfied that [the applicant] has been convicted by final judgment of a ‘particularly serious crime’, within the terms of section 36(1C)(b) of the Act. The Tribunal is also satisfied that [the applicant] is, presently, a danger to the community, in terms of the high risk that was contemplated in KDSP. The protective factors of a supportive family have been present in the past but have not prevented re-offending. While there is some suggestion that he has been involved in trading illicit drugs in detention, there is not sufficient material other than broad allegations for me to come to any conclusion on that. It does not appear that he has resumed taking illicit substances in the IDC. However, I believe his history shows that he is very vulnerable to such a resumption outside the protective environment that the detention centre provides.
261. I also consider [the applicant] is vulnerable to taking up with former criminal associates when returned to his home environment, because that is what he has done in the past. These two factors have in the past led him into re-offending. Added to this is what is described as [the applicant]’s antisocial cognition and poor impulse control, and lack of remorse. I take into account that a treatment plan has been developed. The plan is well-intentioned and contains important elements, but it is also significantly incomplete in not adequately addressing the non-psychiatric challenges [the applicant] faces: his impulsiveness, criminal traits and his ‘antisocial personality pattern’. I therefore find that, notwithstanding some protective factors such as support of his family members, there are reasonable grounds to conclude that [the applicant] presents a current danger to the community.
262. The conclusion of the Tribunal therefore is that [the applicant]:
(a) has been convicted of a particularly serious offence; and
(b) is a danger to the community.
263.The consequence of that finding is that the decision under review must be affirmed.
At [260], the Tribunal concluded that the applicant “is, presently, a danger to the community”. That conclusion is the second of the two critical findings set out at [262] which, as the Tribunal said at [263], led it to affirm the decision under review to refuse the applicant a protection visa.
Although not intended to be necessarily exhaustive, a fair reading of the Tribunal’s reasons including the placement of paragraphs [260] and [261] as part of the Tribunal’s “Conclusion”, suggests that the grounds that were seen as most important by the Tribunal to support its critical finding that the applicant is a danger to the community are referred to in these two paragraphs.
There are four factors identified in the “Conclusion” as providing what the Tribunal described as “reasonable grounds to conclude that [the applicant] presents a current danger to the community”. The first is identified at [260] where it is stated that the applicant would be “very vulnerable” to resuming the taking of illicit substances once he is returned into the community. Secondly and at [261], that the applicant would be vulnerable to “taking up with former criminal associates when returned to his home environment”. The Tribunal stated that those two factors had led in the past to the applicant re-offending. By the expression “[a]dded to this” the Tribunal then identified two (possibly three) further factors or reasons for its conclusion that the applicant is a danger to the community. Namely, (i) the applicant’s “antisocial cognition and poor impulse control” and (ii) “lack of remorse”.
The Tribunal said nothing further about “lack of remorse”. The Tribunal’s reasons then say that it has taken into account that a treatment plan has been developed (for the applicant) and that:
The plan is well-intentioned and contains important elements, but it is also significantly incomplete in not adequately addressing the non-psychiatric challenges [the applicant] faces: his impulsiveness, criminal traits and his ‘antisocial personality pattern’.
It is this sentence that the applicant says contains the error. The applicant contended that there was no basis in the evidence before the Tribunal from which it was open for the Tribunal to have found that the applicant’s treatment plan was “significantly incomplete and not adequately addressing the non-psychiatric challenges [the applicant] faces”.
It is clear enough and not in dispute that the “treatment plan” to which the Tribunal referred in introducing the finding which is here impugned, is the treatment plan prepared by Dr Emily Kwok a clinical and forensic psychologist who is first referred to at [15] of the Tribunal’s reasons. It is also clear enough that the impugned finding arises from the Tribunal’s understanding of Dr Kwok’s evidence including the evidence which the Tribunal purported to summarise at [118]-[146] of its reasons. In that summary and seemingly of relevance to the impugned finding, the Tribunal at [140] to [141] said this (emphasis added):
140.Dr Kwok said that [the applicant]’s postings on social media would be evidence of antisocial cognition. She said it is treated by collective behavioural therapy, but this had not been requested in his plan, and she did not believe he has had regular psychological sessions to address this.
141.Dr Kwok confirmed that antisocial personality pattern was present in [the [applicant] and treatment for this is to find more harmless behaviours. She said there was no plan in relation to this because [the applicant] has not been in contact with a psychologist. She confirmed that his psychosis would have to be addressed first before other behavioural traits were addressed.
The Tribunal returned to Dr Kwok’s evidence later in its reasons when dealing with the “risk of recidivism”. At [234] The Tribunal referred to Dr Kwok’s opinion that the applicant would require a “multidisciplinary team comprising his treating doctor, psychiatrist, psychologist and the community mental health team”. At [235] the Tribunal referred to Dr Kwok’s evidence that it cannot be assumed that “psychiatric treatment is the principal solution” for the applicant and cited other risk factors that need to be addressed “including antisocial cognition and [the applicant’s] personality pattern”.
At [250] the Tribunal said:
250.I also note that Dr Kwok remarked that the treatment plan for [the applicant] does not adequately address his identified antisocial cognition. Impulse control has been a factor in his criminal conduct.
There is in what the Tribunal has said at [261] some ambiguity as to what the “non‑psychiatric challenges” the Tribunal had in mind are. Initially, and in identifying the medical conditions suffered by the applicant which had caused the Tribunal to consider the applicant to be a danger to the community, the Tribunal refers to “antisocial cognition and poor impulse control”. However, later in identifying the inadequacy of the applicant’s treatment plan, the Tribunal refers to the “non-psychiatric challenges” the applicant faces and particularises those as being “impulsiveness, criminal traits and ‘antisocial personality pattern’”. I do not think much turns on that disconnection. It may be that the Tribunal thought that impulsiveness, criminal traits and antisocial personality pattern were manifestations of antisocial cognition. I note in that respect that the evidence given by Dr Kwok was that antisocial cognition and antisocial personality pattern are closely correlated, the former focussed on antisocial thought processes and the latter on antisocial behaviour.
As I will further explain, understood in its proper context the import of what the Tribunal said at [260]-[261] is redolent of a concern which is explicable. What the Tribunal was here saying was that, beyond the applicant’s vulnerability to re-offend by reason of resorting to illicit substances and resuming former associations with criminals, the applicant also has a vulnerability to re-offend because he will return to the community with certain non-psychiatric conditions which will not be treated or adequately treated because his treatment plan does not address or adequately address those non-psychiatric conditions. In other words, part of the reason that the applicant will be a danger to the community if returned to the community, is that he will be returning with certain non‑psychiatric conditions which make him vulnerable to re-offending but which will not be diminished or negated by adequate treatment.
As I will also further explain, the problem with the Tribunal’s finding that the “non-psychiatric challenges” faced by the applicant are not addressed by his treatment plan and the inferential finding that, consequently, if the applicant were returned to the community his non-psychiatric conditions would not be adequately addressed by treatment, is that those findings were not supported by the evidence. The findings seem to have been made because the Tribunal misconstrued the evidence given by Dr Kwok.
Dr Kwok made a number of reports in respect of the applicant, two of which are of primary relevance.
The first is a report dated 4 July 2019 prepared by Dr Kwok at the request of the applicant’s migration agent for use in relation to the processing of the applicant’s protection visa application before the Department of Home Affairs. Attached to that report was a “Treatment Plan” which Dr Kwok described in her report as an outline of her recommended treatment plan for the applicant. Broadly outlined, the treatment plan identified the medical services which Dr Kwok considered were necessary to provide the applicant with the treatment proposed. She recommended admission to a psychiatric clinic for some 5 weeks with ongoing treatment from a multi-disciplinary team including a treating doctor, a psychiatrist and a psychologist who would work in conjunction with a community mental health team. The treatment plan contemplated weekly sessions (at least initially) with both a psychiatrist and a psychologist to manage the applicant’s symptoms and in order that his medication be monitored and reviewed by his treating doctor and psychiatrist. The treatment was described by Dr Kwok as “highly structured and intense”. The psychological treatment was said by Dr Kwok to be intended to assist the applicant with managing post-traumatic stress, relapse prevention, self-management, emotional regulation, and suicide risk assessments as appropriate with therapeutic support being obtained through therapy groups.
In this report, Dr Kwok was asked to identify any “mental health condition” suffered by the applicant that she was able to diagnose. She identified Post-traumatic Stress Disorder and Schizophrenia. The report did not expressly identify antisocial cognition or antisocial personality pattern as a condition from which the applicant suffered. However, those conditions may well be encompassed within other psychological conditions referred to in the report, although, I note that the report identified some limitation in Dr Kwok’s capacity to assess the applicant for “personality disorder, personality dysfunctions and psychopathy” because she was only able to interview him remotely.
However, the report did identify risk factors beyond mental health disorders including “lack of prosocial activities and acquaintances”, “poor impulse control” and “aggressive behaviours” as “risk factors and criminogenic needs that would need to be addressed in order to reduce [the applicant]’s risk of re-offending”. In this respect, Dr Kwok stated that the applicant’s prognosis is poor with a moderate risk of re-offending without appropriate long‑term intervention but that “his risk of recidivism and danger to the community can be significantly lowered with adequate level[s] of prosocial support, engagement with a multi‑disciplinary team and close monitoring of his medication regime”. Later in the report Dr Kwok said that the applicant’s “risk of recidivism and danger to the community can be significantly reduced with strong prosocial support, family support, commitment too intense and long term treatment, and compliance with his medication regime”.
The second report of primary relevance is Dr Kwok’s report of 8 December 2020. That report was requested by the applicant’s lawyers on the basis that it would be used before the Tribunal on the review of the refusal of the applicant’s application for a protection visa. The 8 December 2020, report was followed up by two short supplementary reports dated 13 January 2021 and 16 March 2021 (of no significant relevance to the present issue). The 16 March 2021 report was the latest report provided by Dr Kwok for the Tribunal’s hearing which took place on 6 and 7 May 2021.
In the 8 December 2020 report, Dr Kwok diagnosed the applicant as psychotic with his symptoms continuing to meet the criteria for Schizophrenia and Post-traumatic Stress Disorder. She variously opined that his condition had deteriorated including by reason of additional trauma exacerbating his pre-existing post-traumatic stress symptoms.
In response to a question in the letter of instruction to her which asked what risk factors would need to be addressed in relation to the applicant’s risk of re-offending, Dr Kwok referred to the applicant’s psychosis but then said this:
However, we cannot assume that psychiatric treatment is the principal solution. Other risk factors that need to be addressed include antisocial cognition and personality pattern (low self-control, anger) and low engagement in prosocial leisure pursuits.
Dr Kwok then responded to a question asking what support could be provided to the applicant in the community to support his mental health conditions, in response to which she made observations at [30]-[33] of her report which she later referred to (at [52]) as an outline of the recommended treatment for the applicant:
30.[The applicant] would require a multi-disciplinary treatment team comprising his treating doctor, psychiatrist, psychologist and the community mental health team. His general practitioner will be suitable to act as the case manager for his treatment plan. Based on his current psychotic presentation, it is recommended that treatment for [the applicant] begins at a private mental health hospital where he can benefit from the readily available therapeutic support, routine and close monitoring of his medication adherence.
31. Following his discharge from the hospital, weekly psychological sessions will assist [the applicant] with managing posttraumatic stress, relapse prevention, emotional regulation, anger management and suicide risk assessments. Regular psychiatric reviews will monitor his medication compliance until such time as the psychiatrist sees that his psychotic symptoms are stabilized.
32.The community mental health team will work on the ground to help [the applicant] build noncriminal behaviours and enhance association with anticriminal people. Re-integration will include, but not limited to, [the applicant] forming and maintaining prosocial friendships, engaging in prosocial recreational activities and reaching sufficient psychosocial wellbeing that allows him to cope with general social interactions. Supervision by the mental health team is recommended for the first year after being released into the community.
33. Adherence to the above recommended treatment will improve [the applicant]’s mental health condition. I note that his family had previously set aside funds for his treatment, as well as obtain health insurance for him.
Dr Kwok was then asked to confirm whether she was still of the view that the applicant would be responsive to and aided by treatment in the community which may reduce his risk of re‑offending, to which she responded including by saying that the applicant has both a serious mental illness and troubling personality traits involving poor impulse control and anger and that the usual community mental health services are unlikely to prevent recidivism and problematic behaviours without accompanying psychiatric and correctional treatment that targets the applicant’s risk factors.
Later in the report and by reference to recorded incidents in immigration detention referred to in a decision record and incident reports, Dr Kwok noted that the applicant has poor impulse control. She then in response to a question asking her view as to whether treatment in the community could address the behaviours noted in the incident reports said that the applicant’s condition would require long term treatment which includes strict compliance with medication. In response to a Detention Placement Report and the behaviours of the applicant identified therein, Dr Kwok stated that the report was best understood in the context of the applicant’s mental health disorders, substance abuse, antisocial cognitions and vulnerability to external influence. She said, inter alia, that the applicant’s “antisocial cognitions would require further intervention to address”.
In answer to the question as to whether compliance with treatment and medication would reduce the risk of the applicant re-offending and/or being considered a danger to the Australian community and her view as to how this could be achieved in the community, Dr Kwok said this (at [58]):
Compliance with treatment and medication will reduce [the applicant]’s risk of re‑offending. His prognosis is currently poor with a moderate risk of re-offence without appropriate long-term intervention. However, his risk of recidivism and danger to the community can be lowered with adequate level of prosocial support, engagement with a multidisciplinary team and close monitoring of his medication regime.
The report later (at [62]) further refers to the applicant’s risk of re-offending and posing a danger to the Australian community being dependent upon “his responsiveness to the treatment by a multi-disciplinary team consisting of his treating doctor, psychiatrist, psychologist and the community mental health team”.
On the evidence contained in Dr Kwok’s report of 8 December 2020, the following seems clear:
(1)Dr Kwok recognised that beyond the applicant’s psychiatric illness there were other risk factors including “antisocial cognition” and “antisocial cognition and personality pattern (low self-control, anger) and low engagement in prosocial leisure pursuits” that “need to be addressed”;
(2)Dr Kwok variously recognised other conditions (some which seemingly overlap with those just referred to) including emotional regulation, anger management, troubling personality traits involving poor impulse control and antisocial cognitions;
(3)Dr Kwok recommended that if released into the community the applicant would require treatment by a multi-disciplinary team comprising his treating doctor, psychiatrist, psychologist and a community mental health team and that that treatment should commence with a stay in a private mental health hospital and include weekly psychological sessions;
(4)That the usual community mental health services were unlikely to prevent recidivism by the applicant without accompanying psychiatric and correctional treatment that targets his risk factors; and
(5)That compliance by the applicant with treatment and medication will reduce the applicant’s risk of re-offending and that that risk and the danger to the community, can be lowered including by engagement with a multi-disciplinary team consisting of a treating doctor, psychiatrist, psychologist and a community mental health team.
There can be no doubt that on that evidence, the treatment contemplated for the applicant by Dr Kwok, should he be released into the community, included treatment to address the full range of conditions that Dr Kwok diagnosed the applicant to suffer from. There is nothing at all in that evidence to support a finding that the treatment plan developed for the applicant by Dr Kwok was significantly incomplete in not addressing the “non-psychiatric challenges” that the applicant faces which Dr Kwok described in her reports. The Minister did not suggest the contrary nor did the Minister refer me to any evidence in support of such a finding other than an extract from the cross-examination of Dr Kwok to which I will shortly turn.
That extract needs to be introduced by saying that the cross-examination in question was cross‑examination of Dr Kwok in relation to her 8 December 2020 report and largely took the form of the cross-examiner asking questions by reference to various paragraphs of that report. Before going to the extract relied upon by the Minister, it is necessary also to say that just prior to the evidence the Minister seeks to rely upon, Dr Kwok was asked a question in relation to [35] of her report asking her to explain what she meant by saying that “treatment non-adherence is a critical target for crime prevention”. To that question, Dr Kwok said (emphasis added):
Yes, yes. So, this talks about his risk of re-offending here. So, part of the treatment, of course, would have to address for [the applicant], things such as impulsiveness, things such as his antisocial traits and thought patterns. And so, those would be critical to manage or to (indistinct) in treatment in order to reduce his risk of reoffending. And therefore, if there is non-adherence in a detention centre, we would like to have a very structured treatment program in the community so that we reduce the likelihood that they would not adhere to treatment.
Dr Kwok was then taken to [28] of her report mentioned above in which she first referred to antisocial cognition and personality pattern. The following exchange upon which the Minister relied (in part) then occurred (emphasis added):
Counsel for the Minister: Then, in the next sentence you say, “However, we cannot assume that psychiatric treatment is the principal solution” and then you identify some other risk factors that need to be addressed, including - I just want to break these down and go through these with you if we can? The first one is antisocial cognition. What is antisocial cognition?
Dr Kwok: Antisocial cognitions are usually things such as, you know, it’s okay to commit crimes, it’s okay to hurt others. So, those would be the kind of thought processes that are antisocial.
Counsel for the Minister: [The applicant] showed signs of antisocial cognition to you?
Dr Kwok: Sorry, would you be able to repeat that question?
Counsel for the Minister: [The applicant] showed signs of antisocial cognition to you?
Dr Kwok: That would be in his past history (indistinct).
Counsel for the Minister: Are the Facebook posts, for example, that you were being asked about before, is that evidence of antisocial cognition?
Dr Kwok: Sorry, I just missed that question.
Counsel for the Minister: My learned friend was asking you before some questions about the Facebook posts made by [the applicant]?
Dr Kwok: Yes.
Counsel for the Minister: Is that evidence of antisocial cognition?
Dr Kwok: Yes, hence the criminal history. Yes.
Counsel for the Minister: How do you treat antisocial cognition?
Dr Kwok: We would be looking at the restructuring of those thoughts and beliefs and attitudes towards crime. And so, I (indistinct) would use that name called a cognitive behavioural therapy to restructure the thought processes.
Counsel for the Minister: Is there a plan in place to deal with or assist [the applicant]’s antisocial cognition?
Dr Kwok: Not a specific plan at this stage and it was not requested at that point.
Counsel for the Minister: The next one you say is…
Senior Member: I’m sorry, Dr Kwok, what was your answer there?
Dr Kwok: It was not a detailed plan, apart from the overall treatment plan that would be inclusive, but however, a detailed (indistinct).
Senior Member: It was just a word, did you say it was not included or not requested?
Dr Kwok: As in a detailed explanation for how to address antisocial cognition was not requested, but it would be (indistinct).
Senior Member: Requested by whom?
Dr Kwok: For the purposes of his reports. And so, the treatment plan would most likely, when he sees a psychologist on a weekly basis for instance, would include that.
Senior Member: I don’t understand that. What do you mean it wasn’t requested by?
Dr Kwok: Okay, perhaps I was just unclear. So, the antisocial cognition is generally addressed in psychological sessions. And so, the treatment plan that I have provided previously did indicate psychological sessions as part of the overall treatment plan. But in terms of the more detailed plan of what is included in the actual psychological session, it has not been provided.
Senior Member: Why not? I just don’t understand how - who determines the ingredients in the plan?
Dr Kwok: (Indistinct) the treatment 5 plan back in 2019, it would be the type of treatment that would be the psychologist who determines the plan, would be the psychologist who would be seeing [the applicant] and providing their own assessment at that point.
Senior Member: You’re saying, that person didn’t request it then?
Dr Kwok: He has not seen a psychologist at that point in order for a psychologist to be present.
Counsel for the Minister: He’s never had any treatment for his antisocial cognition, is that correct?
Dr Kwok: Since the time that I had interacted with him [in] 2019, I do not believe he has had regular psychological sessions.
Counsel for the Minister: Dr Kwok, the next one in that sentence, so I’m just looking at this last sentence on paragraph 28. The next one is personality pattern, but am I correct to read that as antisocial personality pattern?
Dr Kwok: Yes.
Counsel for the Minister: It’s antisocial cognition and antisocial personality pattern?
Dr Kwok: Yes.
Counsel for the Minister: What is antisocial personality pattern?
Dr Kwok: Those would be more the behaviours, so the cognitions are the underlying thought and then the personality patterns are usually manifested as behaviours.
Counsel for the Minister: You give a couple of examples there; low self-control and anger?
Dr Kwok: Yes.
Counsel for the Minister: Is stimulation seeking one of those?
Dr Kwok: Yes.
Counsel for the Minister: Is that present for [the applicant]?
Dr Kwok: Previously in his criminal history, I would say so.
Counsel for the Minister: How do you treat antisocial personality pattern?
Dr Kwok: By similar cognitive behavioural therapy, but that one would be finding more effective behavioural - or more effective behaviours to manage the distressing emotions and finding more harmless or pro-social behaviours to replace the antisocial ones.
Counsel for the Minister: Is there currently any plan in place to deal with or assist [the applicant]’s antisocial personality pattern?
Dr Kwok: Same as the previous question, he has not been in contact with a psychologist for such a plan.
In the re-examination of Dr Kwok, the applicant’s counsel returned to the subject of antisocial cognition and the following exchange is of relevance:
Counsel for the applicant: Yes. That’s the point I’m seeking to make. In terms of staying with that idea of antisocial cognition, the plan that you’ve recommended the applicant undertaken in the community is - includes, obviously, a course of psychological treatment. It’s true, isn’t it, that as part of that psychological treatment antisocial cognition themes could be addressed?
Dr Kwok: Yes.
Counsel for the applicant: If you were a part of that plan, administering psychological treatment to somebody in [the applicant]’s condition, would you include antisocial cognition in your course of treatment?
Dr Kwok: Yes I would.
The Minister contended that it was open for the Tribunal to find that the treatment plan proposed for the applicant by Dr Kwok did not adequately address the “non-psychiatric challenges” the applicant faced. The Minister contended that that finding was available on the evidence of Dr Kwok that the treatment plan “did not, at that time, deal with [the applicant’s] antisocial cognition” and that it was open to the Tribunal to regard this as a significant omission.
That submission both misconstrues the evidence and misconstrues the finding made by the Tribunal.
First, it misconstrues the evidence. Dr Kwok’s evidence was not open to be read as though the treatment plan which she proposed did not deal with the applicant’s antisocial cognition. Her evidence, including in cross-examination, was that such conditions were intended to be addressed by the treatment proposed for the applicant but that the specific therapies required to address antisocial cognition would be formulated by a psychologist whom the treatment plan proposed that the applicant would be treated by on a regular basis.
Dr Kwok’s evidence identified numerous non-psychiatric conditions which the applicant suffered from including in her cross-examination (as set out at [73] above) “impulsiveness, things such as his antisocial traits and thought patterns”, (which seems to be the genesis of the Tribunal’s terminology in the finding at [261] where the Tribunal refers to “impulsiveness, criminal traits and his ‘antisocial personality pattern’”). Her evidence made it clear enough that she was of the view that the applicant’s conditions including those just mentioned would be addressed by treatment in the community in order to reduce the applicant’s risk of re-offending (see [62] above). Dr Kwok’s treatment plan was most obviously directed to addressing the various conditions of concern that Dr Kwok had identified in her evidence. It did that largely by identifying the medical services required to provide the treatment that Dr Kwok opined that the applicant required. Namely, a psychiatric hospital, a treating doctor, a psychiatrist, weekly sessions with a psychologist and access to a mental health team. The treatment plan did to some extent identify the issues that needed to be addressed by those services but it did not descend to either identifying or describing the particular medications or the particular therapies that the medical services intended to be utilised would provide.
Second, the Minister’s submission above at [76] misconstrues the Tribunal’s finding. The Tribunal described the treatment plan as “significantly incomplete in not adequately addressing” particular conditions. The Minister’s contention construes that as a criticism directed at the treatment plan’s failure to specify the detail of the therapies that would be provided to the applicant to address his “non-psychiatric challenges”, rather than a criticism of the treatment plan directed at its failure to adequately engage with the applicant’s “non‑psychiatric challenges” by providing for those conditions to be the subject of the treatment proposed. The former constructions fails to appreciate the context in which the Tribunal’s finding was made. The context is the Tribunal’s concern that the applicant would be a danger to the community without receiving treatment for the “non-psychiatric challenges” the Tribunal identified (described at [56] above). The Tribunal was not concerned with the fact that it was not provided a detailed account of the specific therapies Dr Kwok has recommended that the applicant undergo as part of the treatment to be provided to him for his “non-psychiatric challenges”. The Tribunal was, however, concerned with whether the proposed treatment included treatment for those conditions. It found that the proposed treatment did not, but was wrong to have done so.
The unequivocal evidence before the Tribunal was that the treatment proposed for the applicant, should he be released into the community, would include treatment for each of the conditions identified by Dr Kwok (including each of those identified at [261] of the Tribunal’s reasons in so far as those conditions were identified by Dr Kwok). The Tribunal’s finding at [261] to the effect that the treatment proposed for the applicant would not extend to addressing some of the conditions identified by Dr Kwok demonstrates that the Tribunal misconstrued Dr Kwok’s evidence and thus ignored or failed to take into account the evidence actually given by Dr Kwok to the effect that each of the conditions diagnosed by Dr Kwok (and in particular antisocial cognition, antisocial personality pattern, impulsiveness and antisocial traits [which the Tribunal seems to have called “criminal traits”]) would be addressed by the treatment Dr Kwok had proposed.
The Minister further contended at [70], that the evidence did not show when or how a psychologist would actually be engaged and that therefore it was open to the Tribunal to regard the treatment plan as deficient.
Again, I reject that contention because it suffers from the same misconstruction of the Tribunal’s finding to which I have already referred. The Tribunal’s criticism of the treatment plan was not directed at its failure to specify when or how a psychologist would be engaged to deal with the applicant’s antisocial cognition.
I turn then to consider whether the error in question was jurisdictional. The Minister was correct to contend that not every error in fact finding based on a misunderstanding of the evidence would constitute a jurisdictional error. However, if a decision maker ignores material of sufficient importance to a statutory task, it may well fall into jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] (Robertson J).
That principle was recently further elaborated upon by the Full Court (Bromberg, Jackson and Feutrill JJ) in KXXH v Minister for Immigration, Citizenship, Migrant, Services and Multicultural Affairs [2022] FCAFC 111.
The Full Court at [45]-[46] referred to the recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 and the summary of relevant principles given by the majority of the High Court in that case. In particular, the Full Court referred to the observation made at [24] of Plaintiff M1 that “a decision-maker must read, identify, understand and evaluate” the representations made to it. Further and as quoted by the Full Court, at [27] the High Court majority said (citations omitted):
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The Full Court in KXXH went on, relevantly, to say at [52] and [53]:
52.More broadly, the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46].
53.It is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).
In the present case, the Tribunal was statutorily obliged to determine whether or not the applicant would be a danger to the community. The Tribunal’s finding that he was a danger was a critical finding made by the Tribunal for the reasons already indicated. That finding had to be made based on the evidence. The evidence given by Dr Kwok, as the only expert called in relation to the psychiatric and psychological conditions suffered by the applicant and their propensity to cause the applicant to reoffend if returned to the community, was important evidence, highly probative of the critical question of whether or not the applicant was a danger to the community.
One of the four reasons included in the Tribunal’s “Conclusion” and a reason which was thus likely regarded by the Tribunal as one of the four primary reasons for the finding that the applicant is a danger to the community, was (as explained earlier at [50]) the applicant’s antisocial cognition and poor impulse control, being conditions which, as earlier explained, the Tribunal seems to have regarded as encompassing impulsiveness, criminal traits and antisocial personality pattern.
Whether or not it was proposed by Dr Kwok that the applicant would be treated for those conditions if returned to the community was highly probative of (and treated by the Tribunal as highly probative of) whether and the extent to which the applicant may reoffend and thus be a danger to the community. The evidence of Dr Kwok that the treatment she had proposed would treat the applicant for those conditions was, in all of that context, of sufficient importance to the exercise of the Tribunal’s statutory task to render the Tribunal’s error in failing to consider it, a jurisdictional error. That is so including because the error was material in that there was a realistic possibility that the decision in fact made could have been different had the error not been made: see Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [30]-[33].
Turning then to the second limb of Ground 3, the applicant contended that the Tribunal’s error stems from what was said in the penultimate sentence of [223] that it “was not submitted by the parties that [the applicant’s] schizophrenia and hallucinations had led to his offending”. It is convenient to set out [222] which gives some relevant context and [223] (emphasis added):
222.In Betkoshabeh, Finkelstein said, in remitting a Tribunal decision made in relation to Article 33 where Mr Betkoshabeh had committed serious offences but there was clear evidence of mental health conditions:
The Tribunal should have taken into account the fact that it was the appellant’s psychological illness that led to the commission of the offences. It should have taken into account that the appellant’s conduct was directed to a person whom he believed, as a consequence of his psychological illness, had been conspiring to cause him harm. The Tribunal should have considered the extent to which that psychological illness reduced the moral culpability of the appellant…
223.The facts surrounding the offending by (the applicant) may be distinguished from the circumstances relating to Mr Betkoshabeh. In (the applicant’s) case, sentencing Judges, after reviewing psychological and psychiatric reports, have accepted that (the applicant) has serious and deep-seated mental health diagnoses, but have either not accepted that those conditions have reduced the moral culpability of his criminal acts, or have decided that the moral culpability in one case of proven offending was lessened but not extinguished. It was not submitted by the parties that his schizophrenia and hallucinations had led to his offending. Dr Kwok in her evidence explicitly said in answer to questions from the Respondent that she had not found evidence that (the applicant) suffered from ‘command hallucinations’, i.e hallucinations which direct a person to undertake an act.
It is necessary to appreciate the provenance of these two paragraphs. At [193] of the Tribunal’s reasons, the Tribunal referred to a decision of DP Tamberlin in which the Deputy President considered what the relevant considerations were in determining whether a person constitutes a danger to the Australian community. Relevantly, it was said that the relevant considerations include “the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances”. The structure of the Tribunal’s reasons shows that at [220]-[226] under the heading “Any mitigating or aggravating circumstances”, the Tribunal, addressing the question of whether the applicant constituted a danger to the Australian community, addresses those considerations which were either mitigating or aggravating of the crime which the applicant had committed. At [222]-[223] the Tribunal specifically assessed whether the applicant’s mental health conditions was a mitigating circumstance in relation to his prior offending.
I accept the applicant’s contention that the Tribunal erred in stating that it “was not submitted by the parties that [the applicant’s] schizophrenia and hallucinations had led to his offending”. I accept that the applicant’s written submissions made to the Tribunal asserted a nexus between the applicant’s mental health and his past offending. The nature of the nexus asserted varied. At one point, the mental illness was described as having “laid the foundations” for the applicant’s subsequent offending but at other points of the submissions the nexus was suggested to be causal and direct. It is sufficient to say that using the word “led” in the way I consider the Tribunal used it at [223], the applicant did assert that his mental health had led to his prior offending. Further, I think the applicant is correct to contend that the Minister also ran a case based on an asserted link between the applicant’s mental health and the applicant’s prior offending.
The Minister contended that the word “led” as used by the Tribunal meant that the nexus between the applicant’s mental health and his prior offending was not only causal but was the only cause for the offending. As no party submitted that the applicant’s mental health was the only cause of his offending, the Minister contended that the Tribunal was correct to say what it did.
Although I think the paragraph in question is ambiguous in a number of respects, I do not accept that the Tribunal used the word “led” with the precise connotation for which the Minister contended. In my view, the context suggests a broader connotation which would extend to a cause rather than be confined to the cause.
In any event, contrary to the submission made by the applicant I do not accept that the Tribunal’s error was jurisdictional.
I do not consider that the Tribunal’s failure to recognise, in relation to the subject it was considering at [223], that the applicant had contended that his mental health was a cause of his offending mattered very much if at all. Although somewhat unclear, it seems to me that the Tribunal accepted that there was a nexus between the applicant’s mental illness and his prior offending but determined that that circumstance was not significantly mitigating because judges who had sentenced the applicant for his prior offending had not accepted that the applicant’s mental illness had lessened or extinguished his moral culpability for the crimes he committed. The nature of the nexus between the applicant’s mental illness and his prior offending – whether it was a cause or the cause – was not of any apparent significance to that conclusion. Consequently, neither was the Tribunal’s failure to recognise the fact that the applicant had asserted that the nature of the nexus was that it was causal and direct or even that it was the only cause of the prior offending. The error was neither material nor of sufficient importance to the Tribunal’s statutory task to constitute jurisdictional error.
CONCLUSION
The applicant has succeeded on the first limb of ground 3. It follows that the decision of the Tribunal should be quashed and that the review of the applicant’s application for a protection visa should be reconsidered by the Tribunal. I will make orders to that effect, including an order that the Minister pay the applicant’s costs of the application.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 22 December 2022
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Constitutional Validity
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Serious Australian Offence
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Danger to the Community
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Statutory Interpretation
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