Nepata v Minister for Home Affairs
[2019] FCA 1197
•2 August 2019
FEDERAL COURT OF AUSTRALIA
Nepata v Minister for Home Affairs [2019] FCA 1197
Appeal from: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 25 January 2019 by Deputy President P Britten-Jones File number: NSD 610 of 2019 Judge: BROMWICH J Date of judgment: 2 August 2019 Catchwords: MIGRATION – application for review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate the Minister for Home Affairs not to revoke the cancellation of a visa – held: application dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 36(1)
Migration Act 1958 (Cth) ss 500(6H), 500(6J), 500(6L), 501(3A), 501CA(4), 501G(3)
Migration Regulations 1994 (Cth) reg 2.55
Date of hearing: 25 July 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: The applicant appeared in person with the assistance of a family member Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 610 of 2019 BETWEEN: JOSEPH NEPATA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
2 AUGUST 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
The applicant, Mr Joseph Nepata, came to Australia from New Zealand in May 1998, when he was eight years of age. He is now almost 30. He has never returned to New Zealand, but also has never obtained Australian citizenship. As such, his right to remain in Australia depends upon him holding a visa. Mr Nepata has therefore been in immigration detention subsequent to the cancellation of his visa and upon the completion of his gaol term.
Mr Nepata started committing criminal offences when he was a teenager and continued doing so into adulthood. He has had prolonged difficulties with drug addiction, which he has tried hard to overcome. He appeared before the Court as lucid and composed, supported by his able and articulate sister. He did not have the benefit of legal representation.
Mr Nepata’s offending resulted in a warning given in February 2011 that his visa was liable to be cancelled on character grounds if he reoffended. When he did reoffend in a substantial way, and while he was serving a lengthy gaol term, his visa was cancelled as warned, under the mandatory cancelation provisions in s 501(3A). The cancellation decision was made by a delegate of the first respondent, the Minister for Home Affairs on 22 May 2017. He applied to have that decision revoked under s 501CA.
On 1 November 2018, Mr Nepata’s application for the cancellation decision to be revoked was rejected by another delegate of the Minister. He applied for merits review by the second respondent, the Administrative Appeals Tribunal. That application was heard by a Deputy President of the Tribunal.
The Tribunal hearing took place on 24 and 25 January 2019. On the first day, Mr Nepata applied to adjourn the hearing so as to obtain further evidence to support his case for merits review. By reason of strict time limits imposed upon the Tribunal to make a decision, as considered in more detail below, that adjournment application was only allowed to the extent of delaying the start of the hearing to the afternoon of the first scheduled hearing day. The next day, 25 January 2019, the delegate’s decision was affirmed by the Tribunal, with oral reasons being given that were later revised.
Mr Nepata applied out of time to this Court for judicial review of the Tribunal’s decision. He provided an adequate explanation by affidavit for missing the deadline. At a case management hearing, with the consent of the Minister, I extended the time for him to bring his judicial review application. I also ordered that the Minister provide submissions first as Mr Nepata is not legally represented.
It is convenient to set out in some detail what the Tribunal decided before turning to the matters raised in writing and at the hearing in this Court as to why Mr Nepata contends that the Tribunal decision should be set aside and he be given a fresh opportunity to argue for a different outcome before the Tribunal. The Minister did not object to any of the matters raised not having formed part of the formal application for judicial review or otherwise not having been foreshadowed before the appeal hearing.
Before the Tribunal
The adjournment application
The merits review process before the Tribunal is constrained by s 500(6H), (6J) and (6L) of the Migration Act 1958 (Cth), which provide, respectively and relevantly, that in considering an application for merits review of a decision of a delegate not to revoke a visa cancellation decision under s 501CA(4):
(1)if the decision relates to someone who is in the migration zone, the Tribunal must not have regard to:
(a)any information presented orally, unless it was set out in a written statement given to the Minister; or
(b)any document, unless a copy was provided to the Minister,
at least two business days before the Tribunal merits review hearing; and
(2)if the Tribunal has not made a decision within 84 calendar days after the former visa holder was notified of the delegate’s decision, the Tribunal is taken to have made a decision to affirm the delegate’s decision.
Mr Nepata was notified of the delegate’s decision by a letter dated 2 November 2018. Because the letter was sent by pre-paid post, he was deemed to have received it seven working days later, namely on 13 November 2018: s 501G(3) of the Migration Act; reg 2.55(1)(b)(ii), 2.55(3)(c) and 2.55(7)(a) of the Migration Regulations 1994 (Cth). The 84 day period before that decision would be taken to have been affirmed by the Tribunal under s 500(6L) therefore would have expired on Tuesday 5 February 2019.
On 6 December 2018, the Tribunal made directions for the preparation of the merits review application hearing, which was set down for 24 and 25 January 2019. Those included a direction that any requests for summonses were to be made by 12 December 2018.
If the Tribunal had been willing to delay the two day hearing for Mr Nepata’s merits review application so that it concluded just before 5 February 2019, when the delegate’s decision would be taken to be affirmed by reason of s 500(6L), then the hearing would have taken place on Friday, 1 February and Monday, 4 February 2019. However, there were two separate problems with that. First, although the Tribunal was able to give ex tempore reasons on the second hearing day, it could not necessarily have known in advance that this would be possible as the ability to do so would partly depend on what emerged from the hearing. The Tribunal might not have been able to make a decision before the delegate’s decision was taken to have been affirmed.
Secondly, any additional documents or information sought to be relied upon by Mr Nepata would have to be served on the Minister by Wednesday, 30 January 2019, as calculated pursuant to s 36(1) of the Acts Interpretation Act 1901 (Cth). Otherwise that material could not be taken into account at a hearing beginning Friday 1 February 2019 by reason of s 500(6J)(b). Because of the Australia Day public holiday on 28 January 2019, at the time that Mr Nepata made his adjournment application on 24 January 2019, he would have only had at most three working days to obtain that evidence from any health professional or other person running a business.
The adjournment application was made on behalf of Mr Nepata by his sister, Ms Kelsey Clarke, with comments also made by him. In relation to the further evidence that was intended to be obtained and sought to be relied upon:
(1)Ms Clarke said:
We are currently in the process of getting legal documents for the fact that [Mr Nepata’s daughter] is now residing with me but that hasn’t gone through as of yet so that will happen in the next month or so. If we could get the matter adjourned until after that I would like to put that into the tribunal as well.
(2)Mr Nepata said that he needed to get medical documents about himself and about his father:
MR NEPATA: Medical documents. I need medical documents from my doctor which was hard to contact because I've been in custody for so long now.
DEPUTY PRESIDENT: And which doctor is that?
MR NEPATA: He’s on Queen Street, St Marys.
DEPUTY PRESIDENT: And have you contacted that doctor to get documents from him or her?
MR NEPATA: No, no, and I need documents about - medical documents about my father (indistinct).
(3)There was also a reference to obtaining legal advice, but no issue was taken in that regard on this application.
The Deputy President summarised the adjournment application as follows:
Okay. So there are some medical documents that you are seeking and may wish to rely upon. There’s the issue of the legal advice that you say that you’d like to pursue and potentially have representation but you’re asking for one month. Yes, there are time limits in this jurisdiction which might make that difficult.
It was not suggested that this summary of the adjournment sought was inaccurate.
The Minister’s legal representative did not consent to, or oppose, the adjournment sought in the Tribunal, but raised the difficulties posed by s 500(6H), (6J) and (6L) of the Migration Act. The substance of that submission was that it was only possible to have an adjournment of a few days and that certainly a month’s adjournment was not possible.
There was some further debate about a shorter adjournment and the possibility of obtaining some medical evidence by early the following week. As the reasons reproduced below indicate, the Tribunal was not convinced that this was possible. The Tribunal highlighted other practical problems:
So 5 February is the Tuesday so the matter needs to be resolved before then. We’ve got today and tomorrow set aside. Monday [is a] public holiday and I've got a three-day hearing next week back in Adelaide Tuesday, Wednesday and Thursday. So we’re very limited in terms of when we’d be able to hear the matter. I wouldn't be prepared to hear it on the 4th because I think that's too close to the deadline.
There was no suggestion in any of the material before this Court that it was proposed to the Tribunal that the additional evidence sought to be relied upon could be obtained and served on the Minister by 30 January 2019. It followed that there was no utility in taking the risk of not making a decision in time by granting only the very short adjournment that was possible.
The Tribunal gave the following reasons for refusing to adjourn the hearing beyond that afternoon (taken from the transcript verbatim):
But I’m not convinced that I should make an adjournment to allow the further documents to be provided given that the direction made on 6 December specifically required requests for summonses by 12 December and that that wasn't complied with by yourselves and that I’m not convinced that any material documents will be provided in any event within such a short timeframe and nor am I convinced that you’ve really suffered any real prejudice as a result of receiving the documents late and I think that any prejudice you’ve got there can be dealt with by a short adjournment till this afternoon and this matter was – there were also directions with respect to the provision by yourself of any further documents that you wish to rely upon and you were to file and lodge with the Tribunal and give to the respondent witness statements and evidence on or before 26 December and that wasn't done and so you failed to comply with the direction and I’m not convinced there’s any satisfactory explanation for not having done that and you've had an opportunity then to provide material in reply by 16 January with respect to the documents provided on 11 January by email and well, even if you took five days from the date that they were provided which was – well, it was contemplated you still had five days to respond and you haven’t put any material in which would suggest that you haven’t made appropriate efforts to comply with the directions. So in circumstances when you haven’t made proper efforts to comply with the directions I’m not inclined to grant an indulgence.
The reference to receiving documents late was a reference to additional documents tendered by the Minister, but ultimately rejected by the Tribunal and expressly not taken into account.
The Tribunal’s decision
The Deputy President summarised the burden of the evidence before him as follows (at [2]-[8]):
The applicant, his mother and his sister all gave oral evidence supplementing their written statements. They were credible witnesses. I was very impressed with the mother and the sister who were very articulate and gave the impression of being very capable persons. The applicant himself was less articulate, but he too displayed candour when giving his evidence. The sister also acted as the representative of the applicant and she did a very good job.
In addition to the oral evidence, the applicant relied upon written statements or character references from the applicant’s 12 year old daughter and the children’s maternal grandmother. The thrust of this evidence was that the applicant’s children would benefit from their father remaining in Australia and that all of the circumstances were such that the applicant should be given a chance to prove himself as a father and in the community now that he has served his prison sentence.
Much of the documentation relied upon by the respondent goes to the past offending by the applicant. There have been numerous regular and serious criminal offences in the period from 2003 to 2011 carried out by the applicant from age 13 to about age 21. The applicant is now 28 years old. He has been in detention for the last 13 months having served six years of imprisonment immediately before then.
A chronology of relevant events in the applicant’s life follows. He was born in 1989 and moved from New Zealand to Sydney at age 8 with his mother, father and younger sister. He committed his first offence at age 13 for robbery in company. In 2004, he was involved in a robbery armed with offensive weapon and damaged property for which he was convicted in the juvenile system. In 2006 his daughter was born.
In 2007, there was an offence involving domestic violence, as a result of which he entered into a supervised program for alcohol and drug counselling. There was juvenile detention for a period of approximately four weeks. In 2008, the applicant's son was born. In 2009, the applicant was convicted of assault occasioning actual bodily harm in an incident. This was the first offence of the applicant in the adult court. He spent one month in gaol as a result of that. Also, in 2009 there was a family law order placing the children with their maternal grandmother.
At around about that time and in 2010 the applicant participated in a process of drug and alcohol rehabilitation and attended Alcoholics Anonymous. Unfortunately, there was a relapse because during that year he was convicted of common assault and sentenced to six months imprisonment. This was another episode of what has been described as serious domestic violence.
In February 2011, the applicant received a formal warning from the Department of Immigration and Citizenship which he has acknowledged receiving and understanding the consequences of it. In August 2011, the applicant inflicted grievous bodily harm on his then partner. He evaded police until his arrest on 31 December 2011 when he was placed in custody. In September 2011, the maternal grandmother by agreement was given sole parental responsibility for the children. In February 2014, the applicant was convicted by a jury and sentenced to nine years imprisonment for the domestic violence that had occurred in August of 2011. In May 2017, the applicant’s visa was cancelled and on 1 November 2018 a delegate of the Minister for Home Affairs decided not to revoke the cancellation decision.
The Deputy President then summarised the legislative regime for the revocation of visa cancellation decisions based on character grounds and the terms of the direction of the Minister that was binding on the Tribunal known as Direction 65. It was not in doubt that Mr Nepata’s most recent criminal conviction, resulting in a head sentence of nine years and a non-parole period of six years, meant that he could not pass the character test. It followed that the decision to be made turned on whether or not there was another reason why the visa cancellation decision should be revoked. The Deputy President considered the primary considerations required to be taken into account on that topic under Direction 65, namely:
(1)protection of the community from criminal or other serious conduct and the risk to the Australian community should Mr Nepata reoffend;
(2)the best interests of minor children (being Mr Nepata’s daughter born in 2006 and son born in 2008); and
(3)the expectations of the Australian community.
As to the protection of the Australian community from the risk of further offending, the Deputy President reasoned as follows (at [17]-[25]):
With respect to the nature and seriousness of the offending by the applicant, the offences include three separate incidents of domestic violence of a serious and escalating nature. There are also a number of drug offences. The most recent offending resulted in the applicant being sentenced to a term of nine years imprisonment. There is a trend of increasing seriousness and the offending has been frequent. The cumulative effect of the repeated offending is significant. The applicant reoffended soon after receiving his formal warning and soon after providing representations suggesting he had learnt his lesson in response to a previous consideration given to cancelling his visa.
In sentencing the applicant with respect to his most recent domestic violence offence the sentencing judge referred to the offence as an extremely serious one. Her Honour stated further that the offence and I quote:
involved the use of a weapon to inflict serious injury resulting in significant ongoing disability and substantial emotional harm. The offender armed himself with an extremely sharp weapon and he lunged at the victim after earlier assaulting her and threatening to kill her. It was an incident arising out of a domestic relationship, an offence committed in the victim’s home in front of others who were clearly affected by what they witnessed.
Her Honour described the applicant's behaviour as cowardly and his flight from the premises after the offence as consistent with full knowledge of what he had done. Domestic violence offending must be considered to be very serious offending.
With respect to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, paragraph 13.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Should the applicant re-offend in the manner he has previously, the nature of the harm likely to be caused includes serious physical and psychological harm and financial harm.
It is apparent that the victim of the applicant’s most recent domestic violence offence suffered very significant physical harm as a result of the applicant's conduct. With respect to the risk of recidivism on 30 November 2009 sentencing the applicant for offences of assault occasioning actual bodily harm and common assault, the sentencing judge remarked that the assaults on members of the public in public were unnecessary, cowardly and unprovoked. On 25 August 2010, the sentencing magistrate indicated that the applicant had a shocking record of domestic violence.
In sentencing the applicant on 21 February 2014, the judge remarked that at the time of the offence, the applicant was on a good behaviour bond, that the applicant had a long history of drug and alcohol abuse, that the applicant had undertaken rehabilitation but relapsed, that the applicant claimed he was motivated to do something about his drug and alcohol abuse, however on his own admission had continued to take illicit substances when in gaol and that this did not bode well for his prospects of rehabilitation, and that the applicant is someone who clearly has difficulty accepting responsibility for his own actions. Her Honour had difficulty accepting that the applicant was genuinely remorseful and contrite and expressed considerable doubt as to his ability to rehabilitate himself and reform.
Further of relevance to the risk of recidivism the applicant received a notice of intention to consider cancelling his visa on 27 September 2010. The applicant provided the Department with a handwritten letter in response to the notice of intention. The applicant asked that his visa not be cancelled because of his Australian citizen children. The applicant also provided a handwritten letter dated on or about 23 October 2010 in response to a notice of intention. The applicant stated relevantly that he had come to the realisation that he could not drink any amount of alcohol, that he planned to go back and do another rehabilitation program and to address his problems so that he never went back to gaol, that he now realised what he had done and what he could lose if he were to be deported and that he asked for one more chance because he knew that he would not reoffend.
By letter dated 1 February 2011, the applicant was issued a formal written warning. The applicant received this warning and acknowledged receipt of it. Despite this, the applicant re-offended within a very short period of his being released from gaol. He was released on 10 February 2011 and readmitted to gaol on 31 December 2011 when he was arrested in relation to his offence committed in August 2011.
The presence of the applicant's children has not proven a deterrent in the past, nor has the applicant been deterred by suspended sentences or good behaviour bonds or prior sentences to imprisonment. The applicant has an extensive record of incidents in criminal custody between the period 2011 and 2017. They include, but are not limited to, disobeying a direction, failing a prescribed urine test, failing to comply with correctional centre routine, possessing a drug implement, failing a prescribed drug test and stealing. There is a high and unacceptable risk that the applicant will reoffend causing very significant harm to the Australian community. This primary consideration weighs very heavily in favour of a decision not to revoke the cancellation of the applicant’s visa.
As to the best interests of Mr Nepata’s children, the Deputy President reasoned as follows (at [26]-[27]):
Next I consider the best interests of the children. The applicant’s witnesses gave passionate and heartfelt pleas that it is in the best interests of the children that the applicant remains in Australia, especially given the support that they will need as they enter their teenage years. I accept that the children’s interests weigh in favour of revocation of the decision to not revoke the visa, but in terms of the weight that I should give to this factor I note the following matters:
(a)that the children have been with their maternal grandmother on and off for the majority of the time since 2009;
(b) that the applicant’s physical presence in his children's lives has been intermittent due to his own conduct;
(c) that in the six years in prison, his children did not physically visit him, but that in the 13 months in detention there have been some visits by the children;
(d) that the children’s paternal grandmother sees her grandchildren regularly and has said that she would always put them first;
(e) that the daughter is now living with her aunt and she is settled there and is treated like a daughter; and
(f)that the son is settled and happy with his maternal grandmother in Rylstone where there are support facilities on which the son has ongoing reliance.
It will be difficult for the children if the father is deported, but I note that there would be no impact on the current care arrangements. This factor, namely the best interests of the minor children, is favourable to the applicant, but it does not command a significant weight given the factors I have referred to.
As to the expectations of the Australian community, the Deputy President reasoned as follows (at [28]-[31]):
Next I wish to consider the expectations of the Australian community. Paragraph 13.3(1) of the Direction provides, and I quote:
The Australian community expects non-citizens to obey Australia's laws while in Australia. Where a non-citizen has breached or where there is an unacceptable risk that they will breach this tru[st] or where the non-citizen has been convicted of offences in Australia or elsewhere it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the government’s views in this respect.
This applies in the case of the applicant. The offences of domestic violence and the risk of reoffending means it is simply inappropriate to revoke the decision.
The Australian community has a particularly low tolerance of domestic violence and would expect that this would weigh very heavily against the applicant. The applicant has had multiple opportunities to reform his offending behaviour and has failed to act upon them. The applicant has not been deterred from offending by terms of imprisonment, nor by the prior warning with respect to the potential for repeated criminal conduct to cause his visa to be cancelled, nor by the presence of his children and a loving sister and mother.
There is no independent evidence of any substantial positive contribution to the Australian community by the applicant, although I do note that the applicant has held some jobs and has participated in and obtained certain certificates of qualification whilst incarcerated. I consider that there is a high and unacceptable risk of recidivism by the applicant with the consequential potential for very significant harm to members of the community. The expectations of the community weigh heavily against revoking the cancellation decision.
The Deputy President had regard to a number of other considerations, being the strength and nature of Mr Nepata’s ties to Australia which were found to marginally favour him, the impact of his conduct on victims which was a minor factor against him, and the extent of impediments he would face if removed from Australia (and thereupon returned to New Zealand), which was slightly favourable to him.
The Deputy President concluded that protection of the Australian community and its expectations outweighed the best interests of Mr Nepata’s children and that the other considerations did not impact upon this conclusion. While Mr Nepata would have significantly less to do with his children, they had not had a lot of contact with him in the past due to his conduct and they were lucky to have two very caring grandmothers and a caring and supportive aunt. Thus the delegate’s decision was affirmed.
Grounds of review
Mr Nepata, with the assistance of his sister, Ms Clarke, ultimately advanced six grounds for overturning the Tribunal’s decision. I deal with them in turn.
1. Assertion that the Tribunal was influenced by material tendered by the Minister but not admitted into evidence
This ground depended upon the Deputy President relying upon a document, being a “Conviction, Sentences and Appeals” report from the New South Wales Department of Corrective Services that was not in evidence, because it was in the bundle of documents tendered by the Minister but rejected because it came in too late. This ground was factually misconceived for the following reasons:
(1)the part of the reasons relied upon were those of the delegate (at [43]), not the Tribunal;
(2)there were two versions of the report, the first being generated on 30 November 2017 that was in evidence, and the second being generated on 8 January 2019 that was not in evidence, but no material difference was identified in the later, updated, report;
(3)the earlier report was before the delegate and was therefore before the Deputy President as part of the “G” documents required to be furnished to the Tribunal by the Minister;
(4)the Deputy President referred to the contents of the earlier report at [25], being the last passage reproduced above at [22], a reference that does not suggest any reliance on any additional information that was only in the later, updated, report that was not in evidence.
No reliance on anything that was not in evidence before the Tribunal has been established. This ground must therefore fail at the first, factual, threshold, without any need to consider the question of jurisdictional error.
2. Assertion that the Tribunal erred in treating further non-violent offences as being probative of the risk of further offences of violence being committed
This ground seeks to draw a distinction between drug offending and violent offending, asserting that a continuation of the former did not necessarily lead to any conclusion of any enhanced risk of the latter occurring. That is undoubtedly a path of reasoning that might have been adopted. However, the Tribunal was not obliged to address the risk of offending in this way. It was open to the Tribunal to conclude that any type of continued offending increased the risk of further violent offending. That is particularly so when reliance was placed on an extensive record of offences whilst serving a gaol sentence, even if none of them involved violence. No error of fact, law or logic is evident, let alone the necessary jurisdictional error. This ground must fail.
3. Assertion that the Tribunal should have granted the adjournment sought – taken to be an asserted denial of procedural fairness
This ground is in substance addressed by the discussion of the adjournment application above. Mr Nepata was not able to identify any error on the part of the Tribunal in refusing to grant the adjournment sought, let alone an error rising to the level of jurisdictional error by way, for example, of denial of procedural fairness. Even without the tight statutory regime that the Tribunal had to work within, there was no denial of procedural fairness. He had been given ample time in which to bring the evidence that he needed for the merits review that he had sought. No more was required of the Tribunal. The Tribunal had regard to the best interests of Mr Nepata’s children, and his daughter in particular. This ground must also fail.
4. Asserted Error in the description of Mr Nepata’s offences
At [17] of the Tribunal’s reasons, being the first passage reproduced above at [22], reference is made to “three separate incidents of domestic violence”. Mr Nepata asserts that this is incorrect because he had convictions for two domestic violence offences, not three. The two domestic violence offences that he accepts took place were dealt with in court on 19 July 2007 and 21 February 2014. He asserts that the third offence that was incorrectly treated by the Tribunal as being a domestic violence offence was in court on 8 July 2009. In response, the Minister took the Court to sentencing remarks in the Local Court of New South Wales at Katoomba on 25 August 2010, which make it clear that the sentence imposed on that day was for a domestic violence offence towards his then domestic partner, when children were present. This ground therefore fails on a factual level. Even if it had not, it is not apparent that an error of that kind would be jurisdictional in nature, nor that it could have made any difference to the result so as to amount to a jurisdictional error in any event. This ground must therefore fail.
5. Asserted error related to drug and alcohol rehabilitation
This ground turns on assertions that Mr Nepata was making better progress as to rehabilitation than the Tribunal had found, pointing to inferences to be drawn from the material that was before the Deputy President. There are two problems with this assertion. Firstly, while the psychiatrist’s report relied upon that was in evidence before the Tribunal was not specifically referred to in the Deputy President’s reasons, that report was considered in some detail in sentencing remarks that were specifically referred to. Secondly, neither Mr Nepata, nor Ms Clarke assisting him, could identify any part of the proceeding before the Tribunal where the inference as to better prospects of rehabilitation were referred to. Thirdly, the Tribunal was not under any obligation to refer to all of the material that was before it. Rehabilitation was squarely raised and was squarely addressed. No more was required. This ground must therefore fail.
6. Assertion that the Tribunal erred in finding that Mr Nepata had poor prospects of rehabilitation because he had not taken responsibility for his own actions
This ground turns on the Tribunal’s reasons at [22]. The problem for Mr Nepata is that this was not any recording of findings made by the Tribunal, but rather a summary of findings made by the New South Wales District Court judge imposing a sentence of nine years’ imprisonment with a non-parole period of six years. The Tribunal was entitled to rely upon those sentencing remarks in forming a view as to Mr Nepata’s risk of reoffending. As no error has been identified in the process, reasoning or conclusion in that regard, this ground must fail.
Conclusion
As all of the grounds of review advanced by Mr Nepata have failed, his application for judicial review must be dismissed. There is no reason why costs should not follow the event.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 2 August 2019
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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Natural Justice & Procedural Fairness
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Legitimate Expectation
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