Efz21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1033
•5 September 2022
FEDERAL COURT OF AUSTRALIA
EFZ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1033
Appeal from: Application for judicial review from: CYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3887 File number: VID 728 of 2021 Judgment of: MOSHINSKY J Date of judgment: 5 September 2022 Catchwords: MIGRATION – protection visa – where the Tribunal found that the applicant was ineligible for the grant of a protection visa on the basis that, having been convicted by a final judgment of a particularly serious crime, he was a danger to the Australian community as referred to in s 36(1C)(b) of the Migration Act 1958 (Cth) – whether the Tribunal fell into jurisdictional error in its consideration of whether the applicant was a danger to the Australian community – application dismissed Legislation: Migration Act 1958 (Cth), ss 5, 5M, 36, 501 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Carrascalao v Minister for Immigration and Broder Protection (2017) 252 FCR 352
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 (2021) 287 FCR 581
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Singh v Minister for Home Affairs (2019) 267 FCR 200
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 74 Date of hearing: 30 June 2022 Counsel for the Applicant: Ms S Finegan Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 728 of 2021 BETWEEN: EFZ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
5 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, to be fixed as a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of any agreement:
(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN‑COSTS);
(b)within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN‑COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant, who was born in Sudan (in the area that is now South Sudan) and arrived in Australia in 2006 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa, had his visa cancelled in October 2017, pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis of having been sentenced to a term of imprisonment of 12 months or more. A request by the applicant for revocation of the cancellation decision was refused in August 2018.
The present proceeding relates to an application for a protection visa that was made by the applicant on 14 September 2018. The relevant type of visa was a Protection (Class XA) (Subclass 866) visa.
On 21 September 2020, a delegate of the first respondent (the Minister) decided, in summary:
(a)that the applicant was a person in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act;
(b)however, the applicant was ineligible for the grant of a protection visa by reason of ss 36(1C)(b) and 36(2C)(b)(ii).
Section 36(1C)(b) provides, in summary, that a criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, “having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community”. Section 36(2C)(b)(ii), which relates to the complementary protection criterion in s 36(2)(aa), has substantively the same effect as s 36(1C)(b).
The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegate’s decision.
On 22 October 2021, the Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa. The Tribunal concluded that the applicant, having been convicted by a final judgment of a particularly serious crime, was a “danger to the Australian community” within the meaning of s 36(1C)(b). The Tribunal did not separately consider s 36(2C)(b)(ii).
The applicant has applied to this Court for judicial review of the Tribunal’s decision. (An application by the applicant for an extension of time to lodge his application for review was granted by consent on 28 February 2022.) The applicant, who is represented by pro bono counsel, relies on six grounds, which are set out in his amended originating application for review of a migration decision filed on 6 July 2022.
For the reasons that follow, I have concluded that none of the grounds of review is made out.
Key legislative provisions
Section 36(1C) of the Migration Act provides:
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.
Note: For paragraph (b), see section 5M.
For present purposes, only paragraph (b) is relevant. Paragraph (a) can therefore be put to one side.
The expression “particularly serious crime” is defined in s 5M as meaning (among other things) a “serious Australian offence”. That expression is in turn defined in s 5 as meaning an offence against a law in force in Australia where (relevantly): (a) the offence involves violence against a person or involves serious damage to property; and (b) the offence is punishable by imprisonment for a maximum term of not less than 3 years.
The Tribunal’s decision
As noted above, the Tribunal concluded that the applicant, having been convicted by a final judgment of a particularly serious crime, was a “danger to the Australian community” within the meaning of s 36(1C)(b). The Tribunal did not separately consider s 36(2C)(b)(ii). Nor did the Tribunal consider whether the applicant was a person in respect of whom Australia has protection obligations within s 36(2)(a) or (aa).
The Tribunal set out the background to the application for review at [4]-[9]. The Tribunal discussed the legislative history of s 36(1C) at [10]-[15].
At [16], the Tribunal stated that there was one main issue concerning s 36(1C)(b), which had two sub-issues, namely:
(a)had the applicant been convicted by a final judgment of a particularly serious crime?
(b)did the applicant represent a danger to the Australian community?
The Tribunal considered the first sub-issue at [18]-[27]. The Tribunal noted, at [21]-[23], that the applicant had been convicted of a number of offences that met the definition of a “serious Australian offence”. These included: intentionally destroying or damaging property; making a threat to kill; and making a threat to inflict serious injury. The Tribunal concluded, at [27], that it was satisfied that the applicant had been convicted by a final judgment of a particularly serious crime. There is no issue in the present proceeding about that conclusion.
The balance of the Tribunal’s reasons concerned the second sub-issue, namely whether the applicant was a danger to the Australian community. The Tribunal discussed the applicable principles at [28]-[39], referring to WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG), DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18) and other cases.
The Tribunal’s consideration of the second sub-issue was structured under the following main headings:
(a)Seriousness and nature of the crimes committed ([40]-[63]); and
(b)Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime ([64]-[86]).
Seriousness and nature of the crimes committed
The Tribunal noted, at [40], that the applicant conceded that: he had committed some serious crimes that had involved violence; he had a history of non-compliance with the conditions of Community Corrections Orders, Family Violence Intervention Orders and bail; and much of the more serious offending related to instances of family violence.
At [44], the Tribunal set out, in a table, details of the applicant’s criminal history from 2010 to 2017. The Tribunal then stated, at [45], that the applicant’s offences had involved violent incidents and aggressive acts against not only random members of the public, but also his family members. The Tribunal set out some of the sentencing remarks made by a Magistrate in September 2017. The Tribunal observed, at [47], that the applicant’s particularly serious crimes were “aggravated by the fact that his violent, intimidatory and menacing conduct was largely unprovoked and targeted at members of the public and his family”. The Tribunal also noted that he committed acts of violence while his children were present.
The Tribunal stated, at [49], that the numerous terms of imprisonment to which the applicant had been sentenced from 2011 to 2017 indicated the “objective seriousness” of his offending.
The Tribunal considered, at [50]-[57], the length of the sentences imposed. The Tribunal noted the applicant’s submission that the longest term of imprisonment he had been sentenced to was a combined sentence of 12 months with a four-month non-parole period. The Tribunal acknowledged that this was for offences that did not fall within the definition of “particularly serious crime”. Relevantly for two of the grounds of review, the Tribunal reasoned at [52]-[57]:
52.The Applicant contends that for each ‘particularly serious crime’ of which he has been convicted, the Applicant has received sentences substantially below the maximum, often at the lower end of the scale.
53.The terms of imprisonment imposed on the Applicant in October 2011, September 2015 and December 2015 respectively, were at the low end of the range in relation to the offences.
54.However, the Tribunal notes that the offences of Threat to kill and Intentionally damaging property of which the Applicant was convicted in October 2011, each carry a maximum penalty of 10 years’ imprisonment. For these offences the Applicant received an aggregate sentence of six months’ imprisonment with three months suspended for the offences.
55.In September 2015, the Applicant was convicted for the offence of making a Threat to inflict serious injury, which carries a maximum penalty of five years’ imprisonment. The Applicant received a sentence of 11 days’ imprisonment and a CCO. After the Applicant breached this Order, the Applicant was re-sentenced for making a Threat to inflict serious injury, amongst other offences, and received an aggregate three-month custodial sentence.
56.The sentences imposed for these serious crimes, do indicate the offences fall towards the lower end of the spectrum. However, imposing a custodial sentence of imprisonment is generally a sentence of last resort. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] the Tribunal noted that:
[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.
57.Noting this observation, whilst accepting that the sentences imposed on the Applicant were at the low end of the range, the Tribunal finds that the imposition of a term of imprisonment is an objective indicator of the seriousness of his offending.
The Tribunal next considered mitigating and aggravating factors. At [58], the Tribunal stated that the applicant’s particularly serious crimes were aggravated by the fact that they were unprovoked attacks directed at members of the public and his family members. The Tribunal referred to the remarks of the Magistrate who sentenced the applicant in 2017. The Tribunal stated at [60] (which is relevant for one of the grounds of review):
The Applicant contends that his childhood, mental health and substance abuse issues are factors that mitigate the seriousness of his offending. On the basis of the psychological reports of Mr Edwin Kleynhans, the Tribunal accepts that the Applicant has been diagnosed with Substance Abuse Disorder(s) (cannabis and ice), Depression, an Adjustment Disorder as well as a Generalised Personality Disorder exhibiting anger, stress and anxiety, and that he had an extremely traumatic childhood in South Sudan. The Tribunal further accepts that a combination of these factors has significantly contributed to his offending. However, these factors do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood that he will pose a danger to the community, particularly when the evidence indicates that his mental health conditions and drug dependence remain insufficiently addressed.
At [61]-[63], the Tribunal addressed the extent of the applicant’s criminal history, the period over which the crimes took place, and the applicant’s criminal record as a whole. The Tribunal considered that these matters weighed strongly in favour of a finding that the applicant was a danger to the community.
Prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime
The Tribunal addressed the applicant’s prospects of rehabilitation at [64]-[76]. The Tribunal referred, at [64], to the applicant’s contention that detention had provided him with the opportunity to take significant steps towards rehabilitation, and that he had gained insight into his past offending and the need to address the underlying causes of his behaviour.
The Tribunal referred, at [65], to the psychologist’s report of Mr Edwin Kleynhans dated 23 May 2019, on which the applicant relied. The Tribunal quoted paragraphs 42 to 46 of that report, including the recommendation that the applicant undertake intensive Dialectical Behavioural Therapy over a period of 18 months with a review at the end. The psychologist also suggested that the applicant undertake “an intense psychological/drug treatment programme spanned over 18 months which should be made mandatory”. The Tribunal noted, at [67], that the applicant had not undergone any such programme.
The Tribunal noted, at [67], that the applicant relied on his time in detention, and the enforced period of sobriety and abstinence from drug use it had brought, as demonstrating that he had taken steps towards rehabilitation. The Tribunal noted, at [68], that the applicant relied on the period of detention to demonstrate a period of appropriate, non-violent behaviour.
The Tribunal noted, at [69], the evidence before the Tribunal that a significant contributor to the applicant’s aggressive and violent criminal offending was his “alcohol dependence and, significant drug abuse problem”. The Tribunal discussed several reported and documented incidents where drugs and drug-related items had been found in the applicant’s room. After setting out some of the applicant’s contentions, the Tribunal stated at [74]-[76]:
74.Based on the evidence before it, however, the Tribunal cannot be satisfied that the Applicant has made adequate progress towards being rehabilitated in relation to his substance abuse. It does not consider a period of enforced abstinence and a period of self-reflection upon behaviour through detention as a substitute for a professionally administered and supervised psychological/drug treatment programme. As was recommended by Mr Kleynhans, such a programme should be mandatory and span over 18 months.
75.The Tribunal is also of the view that the conditions in which the Applicant finds himself during detention are markedly different than being in the Australian community. He is currently continually supervised. The triggers and access to alcohol and drugs have been removed. If he were to return to the Australian community, he would once again be exposed to these triggers without the benefit of having undergone intensive psychology and drug therapy to reduce risk relapse and re-offending.
76.Accordingly, the Tribunal finds that the Applicant has not sufficiently rehabilitated such that it can be confident that he will not continue to relapse into drug abuse should he re-enter the community. In light of the strong causal link between the Applicant’s substance abuse and his criminal offending, the Tribunal is not satisfied that he will not pose a ‘danger to the Australian community’ should he continue on his path to recovery when unsupervised in the community. The Tribunal is therefore consequently of the view that faced with difficulty similar to that confronting him in the past, the risk of this Applicant again falling back into the commission of similar or identical offending is now only marginally lower than what it was when he entered criminal custody and immigration detention.
(Emphasis added.)
The Tribunal considered the risk of re-offending and recidivism at [77]-[82]:
77.The Applicant contends that he has a number of strong motivations against re-offending, being his desire to have a close relationship with his two children, his mother and siblings and his fear of harm if he were returned to South Sudan. In addition, he claims that the hardship he has endured by the long periods of immigration detention act as a strong incentive for him not to re-offend should he be permitted to remain in Australia.
78.The Applicant has also contended he is on good terms with his former partner and claims in relation to the care of their children, stating ‘it will not be difficult for us to negotiate an arrangement for their care that puts their best interest first’. However, there is no contemporary information before the Tribunal from the Applicant’s former partner to support such a statement.
79.The Tribunal also acknowledges the Applicant’s family support. His brother gave evidence at the hearing that he would support the Applicant in any way he can. The brother told the Tribunal that he believed the Applicant had changed and he did not think he would reoffend. The Tribunal has written statements from the Applicant’s siblings other family members. These statements indicate that the family members have genuine connections and care for each other.
80.The Applicant has made multiple claims that with the support of his family he would not relapse. It is not lost on the Tribunal that he had this support previously (as well as from Afri-Aus Care), yet it did not deter him from his drug abuse. These support mechanisms were not enough to prevent the Applicant from substance abuse or offending in the first instance, the Tribunal therefore has real doubts they would be enough in the future if the Applicant were to relapse.
81.The evidence before the Tribunal is that the Applicant has frequently cited his desire to be with his children and family as a factor strongly motivating him not to re-offend.
82.The Applicant has asserted that he would not engage in further offending. The Tribunal, however, cannot accept this assertion in any form. The Tribunal is of the view that it is best informed of his likelihood of re-offending by assessing past patterns of behaviour. His custodial sentences have also not deterred him from re-offending. Further, and taking into consideration the admitted fact that substance abuse is a trigger to the Applicant’s offending – in regards to which the Tribunal is not satisfied he is rehabilitated – the only reasonable conclusion that can be drawn is that the Applicant is likely to engage in further criminal conduct.
In relation to the likelihood of the applicant relapsing into crime, the Tribunal stated at [83]-[86]:
83.The Tribunal accepts that the Applicant’s assertions made in his representations to the Department and in his evidence and submissions to the Tribunal are genuine, and that he sincerely intends not to re-offend and believes that he will not engage in further criminal conduct.
84.The Tribunal also acknowledges the courses the Applicant has undertaken to improve his employability and his desire to operate a cleaning business.
85.However, [given] the fact that the Applicant’s substance abuse condition remains untreated, it cannot be said with any confidence that he would obtain the help he needs if he were permitted to re-enter the community. If the Applicant were granted a Protection visa, he would resume his life without the restrictions or supervision requirements associated with release on parole. There will be no orders in place requiring him to continue with a treatment programme or to report to a hospital or a mental health practitioner for regular monitoring of his progress.
86.Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG [at 26], the following is a summary of the Applicant’s behaviour and circumstances which support a finding that he presents a real and significant possibility of ‘danger to the Australian community’:
(a)The nature and seriousness of some of the Applicant’s offences, which includes menacing and violent acts against random members of the public and his family members;
(b)The aggregate terms of imprisonment imposed on the Applicant in September 2017, July 2016, December 2015, September 2015 and October 2011, noting that a term of imprisonment is a sentence of last resort;
(c)The Applicant’s repeated failure to comply with court orders and bail undertakings and his re-offending despite being given multiple suspended sentences;
(d)The extent of the Applicant’s offending, including family violence offences;
(e)The strong causal relationship between the Applicant’s substance abuse and his criminal offending, and the absence of intensive psychology and drug therapy to reduce risk as was recommended by psychologist Mr Kleynhan as mandatory; and
(f)The Applicant’s risk of re-offending and recidivism and the likelihood of him relapsing into crime, the high risk that when unsupervised in the community he will not engage with the drug and psychological treatment program he requires, and the likelihood that he will be unable to control his anger causing him to again engage in criminal offending causing harm to members of the Australian community.
(Emphasis added.)
The Tribunal therefore concluded that the criterion in s 36(1C)(b) was satisfied. It followed that the applicant was not entitled to the grant of a protection visa.
Application for review
The applicant relies on six grounds of review as set out in the amended originating application. These grounds are set out later in these reasons. Before considering the grounds, I will refer to some principles that are applicable to the grounds generally.
Applicable principles
Danger to the community
In WKCG, Deputy President Tamberlin discussed the principles applicable to whether a person is a “danger to the community” for the purposes of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention). At the time of this decision, s 36(2) of the Migration Act referred to Australia owing protection obligations to an applicant under the Refugees Convention. Article 33(2) of the Refugees Convention provided that the benefit of the non-refoulement obligation could not be claimed by a refugee:
whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Deputy President Tamberlin stated at [25]-[27] and [30]-[31]:
[25]The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[26]Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
[27]The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38ALD 100:
…
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
…
[30]Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
[31]The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
Subsequently, in DOB18, Logan J (as a member of a Full Court of this Court) discussed the meaning of “danger” in s 36(1C) at [72]-[89]. In particular, his Honour stated at [83]:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
The Tribunal in the present case considered that the views expressed in WKCG at [31] and in DOB18 at [83] could be reconciled. It is unnecessary for present purposes to express a view on this. I note that in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 (2021) 287 FCR 581 at [33], the Full Court (Perram, Thawley and Stewart JJ) stated that there is a “real question” whether the test is accurately stated in WKCG, having regard to the observations of Logan J in DOB18 at [72]-[89]. That question does not need to be determined for the purposes of this appeal.
Irrationality or illogicality
Several of the grounds of review rely on irrationality or illogicality as a basis for contending that the Tribunal fell into jurisdictional error.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated at [130]-[132]:
130In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, 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.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Was the Tribunal’s fact finding “illogical” or “irrational”?
132Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …
(Emphasis added.)
See also at [133], [135].
In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT), Robertson J stated, at [151], that the reasons of Crennan and Bell JJ in SZMDS did not support a focus limited to the end result, albeit that the overarching question is whether the decision was affected by jurisdictional error. Likewise, in Robertson J’s view, the reasons for judgment of the third member of the majority in SZMDS, Heydon J, did not limit the enquiry to the end result. The analysis of Robertson J in SZRKT was followed by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [54]-[56], which was in turn approved by a Full Court (McKerracher, Griffiths and Rangiah JJ) in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60].
Consideration
Ground 1
Ground 1 is as follows:
1.The Tribunal’s decision is affected by jurisdictional error in that, in purporting to make a factual assessment of the level of risk that the Applicant posed to the community pursuant to s 36(1C)(b), the Tribunal erred in finding that factors in mitigation do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood that he will pose a danger to the community, and in doing so the Tribunal was irrational and illogical in its reasoning, which no rational or logical decision maker could arrive at on the same evidence.
PARTICULARS
a.Factors in mitigation were psychological diagnoses of Substance Abuse Disorder(s) (cannabis and ice), Depression, an adjustment disorder as well as a Generalised Personality Disorder exhibiting anger, stress and anxiety; and an extremely traumatic childhood in South Sudan; and
b.At [60], the Tribunal found that these factors in mitigation do not lessen the objective seriousness of the Applicant’s criminal offending, nor do they decrease the likelihood that he will pose a danger to the community.
c.Factors in mitigation, by very definition, mitigate the seriousness of offending, and when treated, decrease the likelihood of further offending.
d.The reasoning of the Tribunal, by not understanding the meaning of mitigation, was irrational and illogical.
(Emphasis in original.)
In support of this ground, the applicant submits (in summary):
(a)Factors in mitigation such as psychological diagnoses mitigate the objective seriousness of criminal offending and, when treated, decrease the likelihood of danger to the community.
(b)The task before the Tribunal in this matter was the objective risk assessment of the applicant, which involved assessing the presented evidence and evaluating the risk that the applicant posed to the Australian community, and then further evaluating whether that risk met the threshold for “danger to the Australian community”.
(c)The Tribunal irrationally or illogically concluded that mitigating factors did not lessen the objective seriousness of the criminal offending, or decrease the likelihood that he would pose a danger to the community.
(d)As a result of the error, the Tribunal placed much greater weight on the applicant’s offending than it should have. The faulty step of the Tribunal materially affected its conclusion. As such, the decision was affected by jurisdictional error.
The focus of this ground is the statements made by the Tribunal at [60], which has been set out above. In my view, the statements of the Tribunal at [60] were open to it and were not irrational or illogical in the sense described in SZMDS at [130]-[132].
The Tribunal accepted (at [60]) that the applicant had been diagnosed with substance abuse disorders, depression, an adjustment disorder and a generalised personality disorder, and that he had an extremely traumatic childhood in South Sudan. The Tribunal also accepted that a combination of these factors had significantly contributed to his offending. In stating that these factors did not lessen the “objective seriousness” of the applicant’s criminal offending, the Tribunal was (in my view) referring to the effect of his criminal offending on others in the Australian community, rather than considering (for example) the applicant’s moral culpability. That the Tribunal’s statement is to be understood in this way is indicated by the issue that it was addressing, namely whether the applicant was a danger to the Australian community.
Further, I do not consider it irrational or illogical for the Tribunal to state that the factors relied on by the applicant did not “decrease the likelihood that [the applicant] will pose a danger to the community, particularly when the evidence indicates that his mental health conditions and drug dependence remain insufficiently addressed” (at [60]). This was, in my view, an open path of reasoning. The position would be different if the applicant had established that he had overcome the mitigating factors that had contributed to his offending. However, the Tribunal found that the mitigating factors had not been overcome. In the circumstances, the reasoning of the Tribunal was not irrational or illogical.
For these reasons, this ground is not made out.
Grounds 2 and 3
Consistently with the way the applicant’s submissions were presented, it is convenient to consider grounds 2 and 3 together. They are as follows:
2.The Tribunal’s decision is affected by jurisdictional error in that, in purporting to make a factual assessment of the level of risk that the Applicant posed to the community pursuant to s 36(1C)(b), the Tribunal concluded that the decreased length of prison sentence was not a relevant consideration when assessing the seriousness of the applicant’s offending and in doing so the Tribunal was irrational and illogical in its reasoning.
PARTICULARS
a.At [38], the Tribunal noted that the length of the prison sentences received by the Applicant is a relevant consideration to any danger posed to the Australian community.
b.At [53] and [56], the Tribunal noted that the sentences received by the Applicant were all at the low end of the range with respect to each offence.
c.At [57], the Tribunal found that imprisonment is “an objective indicator of the seriousness of his offending”.
d.The case relied upon by the Tribunal to make this finding was PNLB v Minister for Immigration and Border Protection, In that case, the Tribunal assessed the seriousness of offending against the sentences imposed.
e.The reasoning of the Tribunal was illogical or irrational, as it did not complete this assessment in line with the relied upon case.
3.The Tribunal’s decision is affected by jurisdictional error in that, in purporting to make a factual assessment of the level of risk that the Applicant posed to the community pursuant to s 36(1C)(b) of the Migration Act, the Tribunal erred in finding that imprisonment is “an objective indicator of the seriousness of his offending”, and in doing so, the Tribunal did not give proper consideration to the assessment of the seriousness of the offending, and therefore the Tribunal was failed to complete the task that it was tasked with doing by s 36(1C) of the Migration Act and Ministerial Direction No 75.
PARTICULARS
a.At [57], the Tribunal found that imprisonment is “an objective indicator of the seriousness of his offending”.
b.The case relied upon by the Tribunal to make this finding was PNLB v Minister for Immigration and Border Protection, In that case, the Tribunal assessed the seriousness of offending against the sentences imposed.
c.The task before the Tribunal is a mandatory one, and therefore the assessment of the considerations must be completed. To fail to do so means that the Tribunal falls into jurisdictional error, see Singh v Minister for Home Affairs (2019) 267 FCR 200 at [34]-[38].
In support of ground 2, the applicant submits (in summary):
(a)When completing the task of making the objective assessment of the seriousness of the applicant’s criminal offending, the Tribunal irrationally or illogically failed to take into account the length of the sentences imposed on the applicant when assessing the seriousness of the applicant’s offending.
(b)The decision of the Tribunal was internally inconsistent, and therefore irrational and illogical. It acknowledged that the task before it included taking into account the length of sentences.
(c)In the case relied upon by the Tribunal, PNLB and Minister for Immigration and Border Protection [2018] AATA 162 (PNLB), the Tribunal there assessed the objective seriousness by looking to the total length of time that the applicant in that matter had served; in this matter, no such analysis was completed. The Tribunal did not weigh the fact that the sentencing Magistrate ordered a sentence that was in the low end of the range of possible sentences, against the objective level of seriousness associated with imprisonment.
(d)As a result of the error, the Tribunal placed greater weight on the offending than should objectively have been afforded to it. The faulty step of the Tribunal materially affected the Tribunal’s conclusion. As such, the decision is affected by jurisdictional error.
In support of ground 3, the applicant submits (in summary):
(a)The Tribunal did not address the degree of seriousness of the offending, only that there was some (undisclosed) degree of seriousness to the offending. As such, the Tribunal did not complete the task that was imposed upon it in this hearing.
(b)In PNLB, the Tribunal (at [22]) looked to the total length of time that the applicant in that matter had served; in this matter, no such analysis was completed, and the decision is silent as to how the sentencing affects the objective seriousness of the offending.
(c)The task of the Tribunal under s 36(1C) is mandatory (as opposed to discretionary) (LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 at [8]), and there are strict requirements for the expected minimum degree of reasoning within a ruling: Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh) at [34]-[38]. By merely stating there was a degree of seriousness, and not quantifying the degree of seriousness, the Tribunal fell into jurisdictional error.
Grounds 2 and 3 both concern the Tribunal’s approach to the seriousness of the applicant’s offending. By ground 2, the applicant submits, in essence, that the Tribunal acted irrationally or illogically by not having regard to the fact that the sentences imposed on the applicant were at the low end of the range. By ground 3, the applicant submits, in essence, that the Tribunal erred by failing to assess the degree or level of seriousness of the applicant’s offending. The grounds relate, in particular, to [53], [56] and [57] of the Tribunal’s reasons, which have been set out above.
In my view, neither of these grounds is established. The Tribunal was plainly aware of the actual sentences imposed on the applicant and that these were at the lower end of the range. The sentences were set out in the table in [44] of the Tribunal’s reasons. At [52], the Tribunal referred to the applicant’s contention that, for each “particularly serious crime” of which he had been convicted, the sentence was substantially below the maximum and often at the lower end of the scale. The Tribunal, at [53], accepted that the terms of imprisonment imposed on the applicant in October 2011, September 2015 and December 2015 were at the low end of the range. At [54]-[55], the Tribunal set out details of other sentences imposed on the applicant. The Tribunal then stated, at [56], that the sentences “do indicate the offences fall towards the lower end of the spectrum”. A similar statement was made at [57]. Thus, the Tribunal was plainly aware of the sentences imposed on the applicant and that these were at the lower end of the range.
Having recognised that the sentences were at the lower end of the range, it was open to the Tribunal to treat imprisonment as “generally a sentence of last resort” (at [56]) and to treat the imposition of custodial sentences as “an objective indicator of the seriousness of [the applicant’s] offending” (at [57]). In substance, the Tribunal was saying that, even though the sentences imposed on the applicant were at the lower end of the range, the imposition of sentences of imprisonment showed that his offending was serious. I consider this to be an available mode of reasoning. I do not consider it to be irrational or illogical in the sense described in SZMDS at [130]-[132].
Further, I am not satisfied that the Tribunal erred by not making a finding as to the degree or level of seriousness of the applicant’s offending. The Tribunal set out (and therefore was plainly aware of) the details of the applicant’s offending and the sentences imposed: see [44]-[57]. It took these matters into account in considering whether the applicant was a danger to the Australian community. It was not necessary for the Tribunal to ascribe a particular degree or level of seriousness to the applicant’s offending in order to discharge its statutory task.
I note for completeness that PNLB at [22] does not appear to assist the applicant. The fact that the Tribunal in that case approached the matter in a particular way (referring to the total time served) does not establish any general proposition as to the approach that must be taken.
For these reasons, grounds 2 and 3 are not made out.
Ground 4
Ground 4 is as follows:
4.The Tribunal’s decision is affected by jurisdictional error in that, in purporting to make a factual assessment of the Applicant’s prospects of rehabilitation, the Tribunal took a negative inference from the fact that the Applicant had not completed the treatment program recommended by expert Mr Kleynhans, in circumstances where the Applicant did not have these treatments available to him, and in making the negative inference, the Tribunal was irrational and illogical in its reasoning, which no rational or logical decision maker could arrive at on the same evidence.
PARTICULARS
a.At [74], the Tribunal stated that it: “cannot be satisfied that the Applicant has made adequate progress towards being rehabilitated in relation to his substance abuse. It does not consider a period of enforced abstinence and a period of self-reflection upon behaviour through detention as a substitute for a professionally administered and supervised psychological/drug treatment programme. As was recommended by Mr Kleynhans, such a programme should be mandatory and span over 18 months”.
b.At [76], the Tribunal stated: “the Tribunal finds that the Applicant has not sufficiently rehabilitated”.
c.At [85], the Tribunal stated “the fact that the Applicant’s substance abuse condition remains untreated, it cannot be said with any confidence that he would obtain the help he needs if he were permitted to re-enter the community”.
d.It is irrational and illogical to take a negative inference from lack of engagement with treatments that are not available to the Applicant, especially in circumstances where the decision maker is looking at risk.
The applicant’s submissions in support of this ground can be summarised as follows:
(a)Due to the applicant’s detention, lack of access to psychological and drug treatment facilities, and isolation on Christmas Island, he was prohibited from engaging in any intensive psychological and drug treatment programme.
(b)The mandatory task before the Tribunal was an assessment of the applicant’s prospects of rehabilitation, and this involved looking at all the information to make a qualitative assessment of those prospects.
(c)In the decision, the Tribunal reviewed the expert opinion of psychologist Mr Kleynhans, and formed the view that, because the applicant had not followed the recommendations of the psychologist, the applicant had not made “adequate progress towards being rehabilitated”.
(d)Essentially, the Tribunal found that a lack of completion of the recommendations of the psychologist was relevant, as that lack of completion reduced the prospects of the applicant’s rehabilitation. The Tribunal took a negative inference from the fact that such a course has not been completed. This was irrational and illogical.
(e)The Tribunal was tasked with looking at prospects of rehabilitation into the future. Due to the lack of availability of proper rehabilitation in detention, the lack of completion of the recommended course cannot be relevant to whether the applicant has prospects of rehabilitation. It was not open to the Tribunal to make a negative inference from the fact that the rehabilitative treatment is not completed.
In support of the proposition that the programme recommended by the psychologist was not available to the applicant while he was in detention, the applicant relies on pages 30-31 of the transcript of the hearing before the Tribunal (where the applicant said that he could not access certain types of counselling or therapy as they needed to be paid for) and page 3 of a letter from Refugee Legal dated 9 December 2019 (AB 388). On the basis of these materials, I accept that the treatment programme recommended by the psychologist was not available to the applicant while he was in detention.
In my view, the way in which the Tribunal dealt with this issue was not irrational or illogical (or otherwise erroneous). The Tribunal did not reason (for example) that the applicant should have undertaken the treatment programme recommended by the psychologist. Nor did the Tribunal rely on the fact that the applicant had not completed the programme as a basis for inferring that he would be unwilling to do so in the future (if released from detention). Rather, in the context of considering the applicant’s rehabilitation, and in a context where there had been several reported and documented incidents where drugs and drug-related items had been found in the applicant’s room while in prison or detention (see the Tribunal’s reasons at [70]-[71]), the Tribunal had regard to the fact that the psychologist had recommended that the applicant undertake a particular programme and this had not occurred. I consider that it was open to the Tribunal to reason in this way. I do not consider this mode of reasoning to be irrational or illogical (or otherwise erroneous).
For these reasons, this ground is not made out.
Ground 5
Ground 5 is as follows:
5.The Tribunal’s decision is affected by jurisdictional error in that when considering the progress that has been made by the Applicant towards rehabilitation, it has not applied the correct legal principle in relation to whether the Applicant is a danger to the Australian community pursuant to s 36(1C)(b) of the Migration Act and Ministerial Direction No 75.
PARTICULARS
a.In DOB18 v Minister for Home Affairs, Logan J held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’.
b.By not engaging with treatments not available while in detention does not equate to a present and serious risk, but rather may be viewed as a future risk.
c.As such, the Tribunal misapplied the legal principles under s 36(1C)(b) of the Migration Act, and therefore the decision is effected by jurisdictional error.
The applicant’s submissions in support of this ground can be summarised as follows:
(a)The applicant had done everything within his power to follow the advice of the psychologist, and the fact that he was unable to engage in the treatment programme recommended because it was not available to him does not translate to present risk, to amount to the understood definition of “danger” under s 36(1C)(b) of the Migration Act (see DOB18 at [83]).
(b)Were the applicant to not engage with these programmes once he has been released into the community, then that risk is enlivened; but for the purposes of s 36(1C)(b), the risk remains a future risk, not a present risk. In these circumstances, the risk, as articulated by the Tribunal, does not satisfy the criterion of “danger” in s 36(1C)(b) of the Migration Act.
In my view, the Tribunal did not err in its approach to the question of whether the applicant was a “danger” to the Australian community within the meaning of s 36(1C). The Tribunal assessed the question of danger in terms of both the present and the future (see, eg, [74], [75], [76], [82], [85], [86]). It was correct for the Tribunal to do so.
Although Logan J in DOB18 at [83] referred to “present and serious risk”, read in context his Honour was indicating that one should not focus only on what happened in the past. I do not read his Honour’s judgment as indicating that “danger” in the future is not part of the inquiry. For example, his Honour stated at [75] that “the satisfaction must be that the person is and will into the indefinite future be a danger, not that the person once was a danger” (emphasis added). The point of possible distinction with WKCG concerned the level of risk, not whether one has regard to future risk.
Accordingly, this ground is not made out.
Ground 6
Ground 6 is as follows:
6.The Tribunal’s decision is affected by jurisdictional error in that when considering the progress that has been made by the Applicant towards rehabilitation, it has not considered the rehabilitative courses completed by the Applicant while incarcerated, therefore the Tribunal was failed to complete the task that it was tasked with doing by s 36(1C) of the Migration Act and Ministerial Direction No 75.
PARTICULARS
a.The rehabilitative courses completed by the Applicant were in evidence before the Tribunal, and listed in the Applicant’s SOFIC dated 24 December 2020 at paragraph [48] under the heading “Rehabilitation”.
b.The Applicant was recommended that he complete anger management by the expert Mr Kleynhans, and he attended a range of courses that address this issue.
c.The decision of the Tribunal is silent as to how the many courses completed by the Applicant impact on his prospects of rehabilitation.
d.Given the mandatory nature of the task before the Tribunal, it was obliged to engage with the evidence before it, and take into account all relevant information.
e.In failing to properly engage with this consideration, the Tribunal has erred and [its] decision is affected by jurisdictional error.
In support of this ground, the applicant submits (in summary):
(a)The Tribunal’s decision is silent with regards to courses undertaken and completed by the applicant while incarcerated. Paragraph 45 of the applicant’s written submissions sets out a list of courses undertaken by the applicant in relation to drugs and alcohol, anger management, and other topics. These courses were included in a list in a section headed “Rehabilitation” in the applicant’s statement of facts, issues and contentions before the Tribunal (AB 1132-1134).
(b)These courses were geared towards rehabilitation of the applicant. The fact that the applicant completed the courses was in evidence before the Tribunal.
(c)Further, in his expert report, Mr Kleynhans stated that the applicant would be assisted by completing anger management courses, and the evidence before the Tribunal established that he had engaged in courses that addressed anger management.
(d)The Tribunal purports to engage with this consideration at [84] of its Decision (set out above). There was no reference to the applicant’s extensive attempts to rehabilitate through available courses in the Tribunal’s reasons under the heading “Prospects of rehabilitation”.
(e)The task of the Tribunal under s 36(1C) is a mandatory task (as opposed to discretionary) and there are strict requirements for the expected minimum degree of reasoning within a ruling. By failing to review the rehabilitative courses completed by the applicant when reviewing the applicant’s prospects of rehabilitation, the Tribunal fell into jurisdictional error.
(f)In failing to address this evidence under the relevant matrix, the Tribunal did not give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” in assessing the applicant’s prospects of rehabilitation: Singh at [30], citing Carrascalao v Minister for Immigration and Broder Protection (2017) 252 FCR 352.
The principles applicable to this ground may be briefly stated as follows.
In Singh, in the context of a refusal to grant a visa, the Full Court (Reeves, O’Callaghan and Thawley JJ) stated at [34]-[36]:
34The principle [that the Minister is under an obligation to consider the merits of the case] is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if — for example — it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” — see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” — see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” — see: ETA067 v Republic of Nauru (2018) 92 ALJR 1003; 360 ALR 228 (ETA067) at [14] per Bell, Keane and Gordon JJ.
35However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review: …
36The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
It has also been accepted in other cases that the Tribunal may fall into jurisdictional error if it fails to consider material before it that is of sufficient importance that the failure to consider that material amounts to a failure by the Tribunal to perform its statutory task: SZRKT at [98], [111]-[112] per Robertson J; approved by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]. See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [31], [46], [70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [47]-[54]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [62]. In order to succeed on this ground, the applicant must show:
(a)that the proper inference to draw is that the Tribunal in fact failed to consider particular material that was before it; and
(b)that the material the Tribunal failed to consider was of sufficient importance that the failure to consider it amounted to a failure to perform the Tribunal’s statutory task.
Applying these principles to the facts of the present case, I am not satisfied that the Tribunal fell into jurisdiction error.
It is true that the Tribunal did not refer in its reasons to the courses undertaken by the applicant in relation to drugs and alcohol, and anger management, etc. (The Tribunal did refer, at [84], to vocational courses undertaken by the applicant.) This may support an inference that the Tribunal failed to consider such courses.
However, even if the Tribunal failed to consider those courses, the failure to consider them did not amount to a jurisdictional error (by reason of a failure to carry out the statutory task). The material relating to the courses was not of sufficient importance that a failure to consider it constituted a failure by the Tribunal to perform its statutory task. The courses were presented in paragraph 51 of the applicant’s statement of facts, issues and contentions together with a number of vocational courses (AB 1133-1134). The courses were not presented to the Tribunal as constituting a form of psychological treatment, but rather as the development of “life skills” being “courses designed to improve his education and behaviour”. Further, the applicant was asked about the courses during cross-examination (see Tribunal transcript, pages 28-31). The applicant accepted that:
(a)over the course of three years between 2017 and 2019, he had attended three drug and alcohol-related group sessions, two of about two hours in duration, and one that went for a day;
(b)over that same three-year period, the applicant had attended four anger management group sessions, each of about two hours in duration; and
(c)the applicant did not have any one-on-one counselling or therapy for those issues or other mental health issues.
Having regard to the way the courses were presented in the applicant’s statement of facts, issues and contentions, and the applicant’s evidence about them, and the issues that were of concern to the Tribunal in its reasons, I am not satisfied that any failure by the Tribunal to consider this material constituted a failure by the Tribunal to carry out its statutory task. Further, for the same reasons, I do not consider that the failure to consider this material otherwise constituted a jurisdictional error.
For these reasons, this ground is not made out.
Conclusion
It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore order that the applicant pay the Minister’s costs, to be fixed as a lump sum.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 5 September 2022
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