Tirtabudi v Minister for Immigration and Citizenship
[2008] FCA 414
•2 April 2008
FEDERAL COURT OF AUSTRALIA
Tirtabudi v Minister for Immigration and Citizenship [2008] FCA 414
ALVIN TIRTABUDI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 2306 OF 2007
COWDROY J
2 APRIL 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2306 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ALVIN TIRTABUDI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
2 APRIL 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal be set aside and the proceedings be remitted to the Tribunal, differently constituted, for a hearing according to law.
2.The First Respondent pay the Appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2306 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ALVIN TIRTABUDI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
2 APRIL 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By Notice of Appeal filed on 21 November 2007 the appellant seeks review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 31 October 2007 which affirmed the decision of a delegate of the first respondent to cancel a Class BB, Subclass 155 Resident Return Visa (‘the visa’) issued to the appellant.
FACTS
The appellant arrived with his parents in Australia from Indonesia on 23 June 1991 holding a Visitor Temporary Entry Permit. He was then aged nine years. On 28 May 1993 his application to remain permanently in Australia was approved by the grant of the visa.
The appellant was charged with numerous criminal offences in 2001, 2002, 2003, 2005, 2006 and 2007. The offences included possession and supply of prohibited drugs, stolen property, custody of a knife in a public place, obtaining money by deception, and larceny. The appellant was sentenced to terms of imprisonment in 2004, 2005, 2006 and 2007. The cumulative total of the appellant’s imprisonment sentences is 23.5 years.
On 18 July 2005 a delegate of the first respondent sent the appellant Notice of Intention to Consider Cancelling the visa (‘NOICC’) pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). Such notice allowed the appellant until 2 August 2005 to provide reasons why the delegate should not exercise her discretion to cancel the visa.
The appellant’s representative responded to the NOICC with written submissions dated 22 August 2005 which included statutory declarations from the appellant and his family members as well as psychologist reports. Subsequent NOICCs were sent to the appellant to which the appellant responded. However, on 6 August 2007 a delegate of the first respondent decided to cancel the appellant’s visa on the grounds that he did not satisfy the character test provided by s 501(6)(a) of the Act.
The appellant applied to the Tribunal to review the delegate’s decision.
THE TRIBUNAL’S DECISION
On 31 October 2007 the Tribunal affirmed the delegate’s decision. In reaching its decision the Tribunal considered the criminal record of the appellant and particularly his risk of recidivism. The Tribunal found that the risk of recidivism of the appellant was moderate to high based on its understanding of the cross examination of Mr Smith, a psychologist retained by the appellant.
GROUNDS OF APPEAL
The notice of appeal filed on 21 November 2007 contained one ground of appeal, namely that the Tribunal erred in law through its failure to take into account relevant considerations in finding that ‘Mr Smith was constrained in evidence and notwithstanding his report (Exhibit A5 attached to these reasons at Annexure G) to agree that the risk is moderate to high’.
At the commencement of the hearing leave was granted to the appellant to raise a second ground of appeal, namely:
There was no evidence to support the finding that the appellant agreed that he tested positive for drugs on bail and when in gaol.
First respondent’s submissions
The first respondent submits that Mr Smith’s assessment of the recidivism of the appellant as contained in the written report required modification after his cross examination, and that the Tribunal’s finding that such assessment should be altered to a medium to high risk of recidivism was justified.
First ground of appeal
Mr Smith interviewed the appellant on one occasion at Villawood Detention Centre on 24 September 2007 for the preparation of his psychological assessment of the appellant. The interview lasted approximately three hours and from such assessment Mr Smith prepared his written report dated 29 September 2007 (‘the written report’). In the written report Mr Smith opined that the risk of recidivism in drug-related offences was nil and the risk of recidivism with regard to fraud offences was low.
In making his assessment Mr Smith considered various matters to determine the risk of recidivism of the appellant, and in doing so Mr Smith referred to the appellant’s drug dependency and the extent of the appellant’s criminality following his release on parole in 2005. Mr Smith observed that although the appellant did not deny responsibility for his actions, such actions:
… suggested a tolerance of antisocial behaviour and this is cause for concern. In fact, the Risk Assessment using the STATIC-99 elevated his categorisation from the ‘low’ to ‘low-medium’ range because of this fact.
As discussed hereunder, the Static-99 Coding Rules revised by Dr Harris (‘Static-99’) is one standard used by psychologists to assess the risk of recidivism.
Mr Smith then had regard to other factors, stating:
The other measures of ‘static variables’ (i.e. characteristics that in and of themselves are unlikely to change in response to treatment) included a clinical interview (which focussed on motivations, attitudes and factors associated with intense psychological distress and antisocial behaviour) and a formal measure of personality. When the information from these are considered in the light of a very lengthy history of stable and highly prosocial behaviour then another picture seems to emerge.
Mr Smith continued:
So, in terms of ‘static’ risk factors, the evidence would suggest that the likelihood of re-offending is not consistent with ‘static factors’ associated with recidivism.
Having applied the Static-99 test and the ‘static’ risk factors, Mr Smith then considered another factor, namely the ‘dynamic variables associated with recidivism’. Mr Smith defined dynamic variables as ‘those variables that can be moderated by treatment or supervision’. Mr Smith found that the appellant appeared to have very few dynamic risk factors and observed: ‘On the whole, the risk assessment of this man reveals a person of quite low risk of recidivism’.
In the final paragraph of the written report Mr Smith, having considered the combination of relevant factors, concluded:
Given the current circumstances and the attitude of the AAT the prognosis of Mr Tirtabudi seems to be a positive one. He argues his attitudinal system is prosocial and the impact of his current situation is so profound that he will never jeopardise permission to remain in Australia. Whilst he acknowledges that made this statement in his previous appeal and before his second period of incarceration, he said the reality of his current situation is so dominating in his awareness that his only choice is to fiercely protect himself and to live a productive life. The dynamic and static features associated with recidivism are not dominant features in his functioning. The psychological testing indicates the lack of psychopathology in his functioning. Thus the elements are there for this man to live his life without re-offending. He has the necessary insights and self controls to live a productive and non-offending lifestyle in Australia.
Cross examination of Mr Smith
When cross examined regarding his method of assessment of recidivism Mr Smith said that the Static-99 test was a ‘small instrument’ comprising seven questions. It related to issues such as repeat offending but it tended to have a high degree or ‘higher degree’ of predictability in the assessment of the risk of recidivism than other methods of assessment.
Mr Smith was then cross examined extensively concerning the application of the Static-99. Mr Smith was asked to assume for the purposes of his cross examination that there was no difference between drug offences and other offences for the purpose of assessing the risk of recidivism. On the basis of this assumption, it was pointed out to Mr Smith that by using details of the criminal history and applying the Static-99 test a score of five was achieved which attracted the category of medium to high risk of recidivism. The cross examination continued:
And that is obviously a lot different to your assessment of low perhaps even nil contained in your report?---Well, the scoring that I had was moderate/low.
THE D.PRESIDENT: It was what?---Moderate/low, the next category down.
Mr MOLONEY: So we bumped up into a higher category?---It is a difference of one or two points, yes.
That is probably all I think for static 99, Mr Smith - - -
The Tribunal’s decision
In respect of recidivism the Tribunal made the following finding at [90]:
During the course of a lengthy cross-examination with which I need not deal in detail, Mr Smith accepted that the risk of recidivism is considerably higher than his report indicates and that a classification in the moderate to high range (utilising Exhibits R7 and R8) would be appropriate.
The Tribunal continued at [130]:
Mr Smith was constrained in evidence and notwithstanding his report (Exhibit A5 attached to these reasons at Annexure G), to agree that the risk is moderate to high.
The Tribunal’s finding is based upon the answers provided by Mr Smith in cross examination in relation to the Static-99 assessment.
Failure to consider informing factors
The Static-99 test is a measure of risk. It is not concerned with the measure of static risk factors, nor does it address dynamic risk factors. Dynamic risk factors relate to dynamic variables identified by Mr Smith as ‘those variables that can be moderated by treatment or supervision’. It was only after a consideration of the results of Static-99 test, combined with the static variables and with dynamic risk factors, that Mr Smith concluded in the written report, ‘On the whole the risk assessment of this man reveals a person of quite low risk of recidivism’.
It was submitted for the first respondent that Mr Smith’s conclusion based upon the Static-99 findings demonstrated that there was a high risk of recidivism and that such test was conclusive. However, when Mr Smith was asked whether the Static-99 test was the ‘major device’ that he had used in forming his assessment of risk, Mr Smith refuted such proposition. Further, Mr Smith was not asked whether the increased score he referred to was, without reference to the static variables and dynamic risk factors, indicative of a higher risk of recidivism.
Mr Smith’s opinion in the written report, based upon a combination of the Static-99 assessment and other static variables and dynamic variables, that the risk of recidivism was ‘quite low’ remained unchallenged. The cross examination only questioned the use of the Static-99 test and did not address the other factors upon which Mr Smith reached his conclusion. Mr Smith did not alter his opinion to agree that the risk of recidivism in respect of the appellant was moderate to high on the basis of a consideration of all of the above factors.
The results of the Static-99 test alone were not an accurate measure of the appellant’s risk of recidivism. However, the Tribunal’s decision relating to the appellant’s risk of recidivism relied solely upon the answers of Mr Smith in relation to the Static-99 test. Accordingly, the Tribunal erred in ignoring relevant material, namely the other factors upon which Mr Smith based his opinion in the written report. Such conduct constitutes jurisdictional error: see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24.
Unproven assumption
The cross examination of Mr Smith concerning the use of the Static-99 test was predicated upon there being no difference between drug offences and other offences. The evidence does not establish that such assumption was relevant to the assessment of the appellant’s recidivism. Further, Mr Smith was not asked whether the assumption upon which his cross examination was based was valid either in relation to the application of the Static-99 test, or generally.
The Tribunal construed the answers of Mr Smith in cross-examination as an acknowledgement by Mr Smith that the level of risk of recidivism contained in the written report was too low. Mr Smith’s answers were based upon an assumption, the validity and applicability of which had not been established. Accordingly, the Tribunal erred in relying upon Mr Smith’s acknowledgement.
Second ground of appeal
The appellant submits that the Tribunal made an erroneous finding in its decision when it said at [98]:
It was put to the Applicant that he tested positive for drugs when on bail and when in gaol; he agreed that this was so.
In the hearing before the Tribunal the appellant was questioned concerning his use of drugs whilst in gaol. The transcript records the following:
Okay. But so you carried on taking the drugs in gaol?---No, I didn’t.
I thought you said that you did?---No, no, I didn’t, I didn’t, I didn’t.
Well, you first went to gaol when?---In 2002 for three months and I got bail.
I see. And when you came out on bail?---I was using again.
You were using again?---Yes.
But not during the three months?---No, not during the three months.
Right, And when did you go back into gaol?---In the same year in July.
In?---In 2003.
And in gaol were you using?---No, I wasn’t.
So you were free from 2003?---Yes.
It was also never put to the appellant that he had tested positive for drugs when in gaol, and there is no evidence of any such tests being performed.
Although the appellant has numerous drug convictions he maintained that he has been drug-free since 2003. He acknowledged that he had failed a drug test on 27 October 2005 whilst on parole but the test result was explained on the basis that he had been taking Sudafed for an illness. A notation consistent with this explanation appeared on the test results.
In the Tribunal’s reasons it stated at [131]:
The evidence before the Tribunal indicates that the Applicant has had repeated chances of reform and repeated warnings and including considerable leniency but has failed to heed them and take advantage of any of them.
The Tribunal said at [140]:
In all the circumstances the discretion cannot be exercised in favour of the Applicant and the decision under review must be affirmed.
The first respondent submits that the Tribunal’s reference to ‘in all the circumstances’ does not refer only to its finding at [98], but to the whole of the reasons for its decision. Further, the first respondent submits that it would be an error for the Court to scrutinise too closely the decision of the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shan Liangand Others (1996) 185 CLR 259.
Contrary to the submissions of the first respondent, the Court’s consideration of the Tribunal’s erroneous factual finding is not a pedantic examination of the Tribunal’s language of the kind referred to in Wu Shan Liang. The evidence establishes that the appellant had not taken drugs whilst in gaol. However, the Tribunal found that the appellant had taken drugs whilst in gaol. Such misunderstanding of the evidence is a matter of substance and of relevance to the appeal before this Court.
The factual finding of the Tribunal relating to the appellant’s positive testing for drugs while in gaol was relevant to an important issue before the Tribunal, namely the risk of the appellant’s recidivism. The reference to ‘the Applicant has had repeated chances at reform and repeated warnings’ and that the appellant had had ‘considerable leniency but has failed to heed them’ could have been based upon the misunderstanding of the evidence, and the conclusion ‘in all the circumstances’ could have been based upon the Tribunal’s erroneous belief that the appellant had taken drugs whilst in gaol.
It has been recognised that the making of a finding for which there is no evidence is an error of law: see SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, where the Full Court said at [19]:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.
See also Craig v The State of South Australia, where the High Court observed at 179:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 356 Mason CJ observed that if some evidence were available to support a finding no error of law exists even if an illogical inference of fact was used in reaching that finding. However, that is not the present circumstance, because no evidence exists to support the finding of the Tribunal that the appellant took drugs whilst in gaol.
The Tribunal, by ignoring the evidence that the appellant did not take drugs whilst in gaol, and by making a contrary finding on such issue without any evidence upon which to base it, has fallen into jurisdictional error: see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19] to [28].
For the above reasons the hearing has miscarried, and must be re-determined according to law.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 2 April 2008
Counsel for the Appellant: Mr Killalea Counsel for the Respondent: Ms McWilliam Date of Hearing: 25 February 2008 Date of Judgment: 2 April 2008
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