Mataia v Minister for Immigration and Border Protection [2018] FCA 401

FEDERAL COURT OF AUSTRALIA

Mataia v Minister for Immigration and Border Protection [2018] FCA 401 File number(s): NSD 1150 of 2017

Judge(s): FARRELL J

Date of judgment: 26 March 2018

Catchwords: MIGRATION – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) on grounds of substantial criminal record – review of a decision of the Administrative Appeals Tribunal – Tribunal affirmed decision of delegate not to revoke cancellation of the visa – whether the Tribunal did not take into account a relevant consideration under Ministerial Direction 65 – whether the Tribunal provided the applicant an opportunity to respond to adverse material – whether s 501(3A) is unconstitutional – application dismissed

Legislation: Migration Act 1958 (Cth) ss 476, 499, 501, 501CA Crimes Act 1900 (NSW) s 97(1)

Cases cited: BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Chen v Minister for Immigration and Border Protection [2017] FCA 46 Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201; HCA 2 Picard v Minister for Immigration and Border Protection [2015] FCA 1430 Salahuddin v Minister for Immigration and Citizenship (2013) 229 FCR 290; FCAFC 141 Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; HCA 63

Date of hearing: 4 December 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 65

Solicitor for the Applicant: Mr L Jacob of Sydney Immigration Law

Counsel for the First Respondent: Mr N Swan

Solicitor for the First Respondent: MinterEllison

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS NSD 1150 of 2017

BETWEEN: RHAKIM ENELIKO MATAIA Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: FARRELL J DATE OF ORDER: 26 March 2018

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

Introduction 1 Mr Mataia is a citizen of New Zealand. He was born in 1995 and first arrived in Australia in 2007. He last arrived in Australia on 2 January 2014 and was then granted a Class TY Subclass 444 Special Category (Temporary) visa. 2 On 19 November 2015, Mr Mataia was convicted in the Campbelltown District Court of two counts of "robbery in company" under s 97(1) of the Crimes Act 1900 (NSW), for which he was sentenced to 4 years imprisonment. 3 On 2 June 2016, a delegate of the Minister for Immigration and Border Protection decided to cancel Mr Mataia's visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision). Section 501(3A) provides that: 501 Refusal or cancellation of visa on character grounds (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 4 At the time the delegate made the cancellation decision, he was obliged to cancel Mr Mataia's visa because: (a) he had a "substantial criminal record" within s 501(6)(a) on the basis of s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more; and (b) he was serving that sentence on a full-time basis at Cessnock Correctional Centre. 5 On 14 October 2016, another delegate of the Minister decided that he would not revoke the cancellation decision under s 501CA(4) of the Migration Act (non-revocation decision). Under s 501CA(4) of the Migration Act, the Minister may revoke the cancellation decision if: (a) the person in relation to whom the cancellation decision was made makes representations in response to an invitation made by the Minister in accordance with s 501CA(3); and (b) the Minister is satisfied either that the person passes the character test (as defined by s 501) or that there is another reason why the cancellation decision should be revoked. 6 The Administrative Appeals Tribunal affirmed the non-revocation decision on 17 May 2017 and published its reasons for decision. Mr Mataia has applied under s 476A(1)(b) of the Migration Act 1958 (Cth) for judicial review of the Tribunal's decision. He is currently in immigration detention on Christmas Island. 7 Mr Mataia's application for review of the Tribunal's decision is supported by an affidavit sworn on 11 July 2017 by his solicitor, Mr Leonard Jacob who filed written submissions and represented Mr Mataia at the hearing of the application.

Tribunal decision 8 The Tribunal's reasons set out the terms of ss 501CA(1) and (4) of the Migration Act and acknowledge that in exercising the power under s 501CA(4), the Tribunal must comply with Direction No.65 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of the visa under s 501C (Direction). The Tribunal also acknowledged that under Part C of the Direction, it was required to take into account the following considerations: Primary Considerations (a) the nature and seriousness of the applicant's conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct; (b) whether the best interests of any minor children will be affected by the decision, and if so, how those interests will be affected; (c) what the expectations of the Australian community would be in relation to the possible revocation of the applicant's visa; Other relevant considerations (d) International non-refoulement obligations; (e) The strength, nature and duration of the applicant's ties to Australia; (f) Impact on Australian business interests; (g) Impact on victims; (h) Extent of impediments if the applicant were removed. 9 The Tribunal noted that primary considerations should generally be given greater weight than the other considerations under cl 8(4) of the Direction. 10 The Tribunal considered the circumstances of each of the offences and Mr Mataia's conduct while in prison at paragraphs [7]-[53] of the reasons, all under the heading "The applicant's criminal record or other conduct to date". This appears to be addressed to cl 13.1(2)(a) of the Direction. 11 The Tribunal considered at length Mr Mataia's criminal record which included his convictions as follows: (1) On 19 November 2015 in the Campbelltown District Court, he was convicted on two counts of robbery in company. There were four other defendants who were also convicted. Mr Mataia was sentenced to 4 years imprisonment with a non-parole period of two years for each offence. The sentence expired on 4 June 2018 in relation to the first victim and 4 September 2018 in relation to the second victim. Mr Mataia was 19 years old when the offences were committed on 25 May 2014. He entered a guilty plea in March 2015. These offences will be referred to as the 2014 offences. (2) On 13 June 2013 at Parramatta Children's Court, he was convicted of aggravated break and enter in company. Mr Mataia was released on probation for 12 months under supervision. (3) On 9 March 2012 at Parramatta Children's Court, he was convicted of assault occasioning actual bodily harm and affray. Mr Mataia was ordered to enter into a good behaviour bond for 12 months under the supervision of Juvenile Justice. 12 The Tribunal noted that following the commission of the assault and affray offence at the end of 2011 or the beginning of 2012 (for which he was convicted on 9 March 2012), Mr Mataia moved from Sydney to Brisbane. His mother, stepfather and their two young children lived in Sydney. He went to live in Brisbane with his father who was married with three young children. The move was to get him away from negative influences. It appears that the aggravated break and enter offence was committed in March 2012, after Mr Mataia met up with one of his co-offenders from the 2011 offences in Sydney, two days before he was due to appear in court in Sydney on those offences. This was during the time Mr Mataia lived with his father. 13 At [54] of the reasons, the Tribunal concluded that Mr Mataia's criminal and other conduct in Australia weighed heavily against revocation of the cancellation decision. In reaching that conclusion, the Tribunal took into account matters which may be summarised as follows: (1) The Tribunal found that the seriousness of the 2014 offences was reflected in the sentence imposed. At [11]-[15] of the reasons, the Tribunal set out details of Mr Mataia's conduct as disclosed on CCTV footage viewed by the Tribunal, the nature of injuries incurred by both victims and the property stolen from them. In the reasons at [16] the Tribunal noted Mr Mataia's evidence given at a police interview. At [17], the Tribunal noted his evidence to the sentencing judge in the District Court that he had not seen his four co-offenders for two or three years before the night on which the offences were committed and he intended to stay away from them when he was released. (2) The Tribunal found (at [18]) that the 2014 offences were violent and unprovoked and it viewed them very seriously. The Tribunal took into account that the offences were not premeditated, that Mr Mataia claimed that he had been drinking before the offences, that he pleaded guilty in March 2015, and that a psychiatrist's report dated 22 May 2015 diagnosed Mr Mataia as having alcohol use disorder. (3) The Tribunal found that the aggravated break and enter in company offence occurred about three months after Mr Mataia had committed the affray and assault offence and moved to Brisbane. The Tribunal noted Mr Mataia's evidence that the aggravated break and enter in company offence occurred after he had met up with some friends and went out drinking at a pub. After he was sentenced in June 2013, Mr Mataia had to visit probation every six weeks until that requirement was cancelled. During that time he was not drinking but he did afterwards. He was still under a supervision order when he committed the 2014 offences. It noted Mr Mataia's evidence that he has a "short fuse" but normally, if he is not drinking, he can walk away. The Tribunal considered the circumstances of the assault and affray offence as described by Mr Mataia: reasons at [19]-[21]. (4) The Tribunal considered Mr Mataia's conduct while in prison including his involvement in a yard disturbance, lighting a fire in his cell and threatening and assaulting corrections staff. The Tribunal noted that this conduct did not impact on his parole, which was granted in the shortest time specified in the sentence: reasons at [25]-[30]. (5) The Tribunal (at [23] of the reasons) found that Mr Mataia's criminal offending increased in seriousness from his first offence to his most recent offences. While he had not offended since 2014, he had not been out of prison or immigration detention in that time. The Tribunal (at [33]) accepted that Mr Mataia was 16 years old when he committed his first offence and 19 years old when he committed his last two offences but it did not accept that his criminal offences were stupid mistakes that the Australian community tolerates. (6) The Tribunal (at [34] of the reasons) referred to Mr Mataia's evidence that he began year 10 but as soon as he dropped out of school in 2011 he was drinking all the time. He would drink 12 large bottles of beer a day, plus about a litre of white wine, and once a week, half a bottle of spirits. He worked at McDonalds when he first left school. (7) The Tribunal considered Mr Mataia's relationships with his mother and stepfather and with his father and his half siblings as well as his time spent as a youth worker with Hillsong church. The Tribunal accepted that Mr Mataia has a very close relationship with his mother and noted that the pre-sentence report dated 14 May 2015 stated that he had maintained limited contact with his father. The Tribunal found that the evidence did not suggest that conflict with Mr Mataia's stepfather was a reason for the 2014 offences as he had told the psychiatrist in May 2015 that he got on well with his stepfather and his mother told the Tribunal that the applicant and his stepfather did not see each other at the time since the stepfather was working shift work: reasons at [35]-[48]. (8) The Tribunal accepted (at [39], [43] and [51] of its reasons) that alcohol and being with the wrong crowd were factors involved in the offences for which Mr Mataia had been convicted. However, while domestic instability and the influence of alcohol and bad company might excuse or explain the first offences committed in 2011, the Tribunal did not accept that the later offences fell into that category. There was no suggestion that alcohol was a factor in any of the incidents which occurred while Mr Mataia was in prison. The Tribunal also took into account that it was the psychiatrist's estimate that Mr Mataia's overall intelligence was at the bottom of the normal range. (9) The Tribunal found (at [50], [52] of the reasons) that all of Mr Mataia's offences reflected poor decision-making in relation to the people he mixed with, his drinking alcohol and then doing what the people that he was with did. His conduct during the offences was that of a follower. He lacked insight into the impact of his conduct on his victims and his expressions of remorse and regret were formulaic and unpersuasive. It found that Mr Mataia had not shown by his conduct a capacity to make a decision to act otherwise than how those around him are acting or to stay away from people who he knows from experience are not a good influence or to avoid drinking alcohol. It found that he has a short fuse, and not only when he has been drinking alcohol. That was demonstrated by his aggressive conduct towards a corrections officer who did not immediately respond to his request. 14 Paragraphs [55]-[67] of the reasons appear under the heading "The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct". This is the language of clause 13.1(2)(b) of the Direction. 15 The Tribunal noted (at [55]-[57]) submissions made by Mr Mataia's representative in connection with the risk that he posed to the Australian community if he should commit further offences or engage in other serious conduct. Those submissions included that: Mr Mataia had shown strong signs of reform and rehabilitation. He was extremely remorseful and understands the reasons for his past offending, the impact on his victims and how to stay out of trouble in the future. He has behaved well in prison and in immigration detention with no known incidents reported and he was released from prison at the earliest opportunity. Mr Mataia had very limited access to rehabilitation programs because most of the time he had been on remand without access to programs. A letter written to the delegate on 6 October 2016 in which Mr Mataia expressed remorse for his actions during the 2014 offences and the harm caused to his victims. He advised that he intended to move to Queensland with his mother and two younger siblings and be employed in his father's business. He has family and many friends in Queensland including his father and his wife and their three children. 16 In response to these submissions, the Tribunal found (at [58]-[65] of its reasons) that: He had been involved in little by way of rehabilitation programs. He had undertaken no alcohol or anger management courses while in prison but he had expressed an intention to do drug, alcohol and anger management courses when he is released from detention. The Tribunal accepted that he had been on remand for the first 12 months where those courses were not available. However, another reason for his lack of access was because in the second 12 months of incarceration he had been moved between prisons at least twice as a consequence of his involvement in incidents in prison. Mr Mataia has shown "some" signs of reform and rehabilitation but the Tribunal did not accept that he had shown "strong" signs. He has had the experience of being in prison and expressed the wish not to return there. However, he had not spent any time in the community since the 2014 offences occurred so that his statements of good intentions had not been tested. While Mr Mataia had expressed remorse and regret, including for the harm caused to victims of the offences committed in 2014, the Tribunal did not accept that his evidence reflected insight into his conduct and its impact on victims or that he genuinely accepted responsibility for his conduct. He tended to blame other people. The Tribunal took into account other matters concerning relationships with Mr Mataia's mother, father, step-father, Hillsong Church, his employment record and prospects of future employment. It gave "significant weight" to the fact that Mr Mataia had a support network at the Hillsong Church when he asked to leave home and committed offences in 2011. The Tribunal did not accept as an explanation for his offences that Mr Mataia wanted to be part of a group since the fact that he had been surrounded by people who did not commit offences (including his mother) did not stop him making poor choices on three occasions to mix with other groups and to drink alcohol. He was living with his father when he committed the 2012 offences, he was living with his mother when he committed the 2014 offences. His mother had not appreciated the extent of his alcohol intake or known that he was subject to a supervision order. Having regard to the incidents while Mr Mataia was in prison (see [13(4)] above), the Tribunal did not agree that Mr Mataia had behaved well in prison. However, in making that finding it took into account that he found prison a scary place and does not want to go back; he was one of the youngest there and the Tribunal inferred that he was under pressure from other inmates to conform. The Tribunal accepted that there had been no adverse incidents in immigration detention. Based on the evidence before it, the Tribunal was not persuaded that Mr Mataia would not drink alcohol when he was released into the community. 17 In conclusion, (at [67]) the Tribunal stated that: Taking into account all the above, the Tribunal considers that the applicant represents an unacceptable risk of harm to individuals or groups in the Australian community. 18 In relation to the best interests of minor children (his five half siblings), the Tribunal concluded, on balance, that it would be in their best interests if Mr Mataia's visa was not revoked. It found that the expectations of the Australian community would weigh against revoking the cancellation decision: [78]-[79] of the Tribunal's reasons. 19 In relation to the strength, nature and duration of Mr Mataia's ties to Australia, the Tribunal (at [81]) noted that Mr Mataia had resided in Australia since the end of 2008, more than eight years. He lived in New Zealand until he was 14 years old. He first offended in November 2011, then in March 2012 and most recently in May 2014. He has been in prison and immigration detention since May 2014, a period of more than two and a half years which is about a quarter of the time he has lived in Australia. Mr Mataia contributed positively to the Australian community when he worked at McDonald's and as a removalist, for a total of less than two years. He contributed positively to the Australian community while attending school between 2008 and 2011 and in 2012. He also contributed positively while he was actively involved, including as a youth leader, in Hillsong Church from 2009 until early 2011 and from the end of 2012 until mid-2014. The Tribunal also noted his familial ties in Sydney and Brisbane and references given on his behalf. It noted that a decision not to revoke the cancellation of Mr Mataia's visa would adversely impact most on his mother who visited him frequently in various prisons and in detention and who was emotionally dependent on him. It would also impact in a minor way on her two young children, but would have little impact on his father and his father's children. On balance, the Tribunal found that this consideration weighed in favour of revoking the cancellation decision: [81]-[86] of the Tribunal's reasons. 20 In relation to the extent of impediments to Mr Mataia if he was removed, the Tribunal found his claims about a lack of a network and poor accommodation and residential prospects to be exaggerated having regard to a number of close friends of his mother with whom she maintained contact. It took into account a psychiatrist's estimation that Mr Mataia's overall intelligence is at the bottom of the normal range. The Tribunal concluded that it gave these impediments little weight: see [87]-[91] of the reasons. 21 The Tribunal concluded (at [92]-[93]) that the considerations favouring not revoking the cancellation decision strongly outweighed those in favour of revoking the cancellation decision and accordingly affirmed the delegate's decision made on 14 October 2016.

Ground 1 22 The first ground of the amended application lodged with the Court on 9 August 2017 was (as written): 1. Ground 1: Jurisdictional Error - The Tribunal failed to consider the Applicant's contention, failed to adhere to statutory requirements and thereby failing to exercise its jurisdiction and consequently making a jurisdictional error. Particulars a) In exercising the power under s 501CA(4) the Tribunal must comply with Direction No.65 (the "Direction") under section 499 of the Migration Act. In assessing the Applicant's risk to the Australian Community pursuant to cl 13.1.2(2) of the Direction, the Tribunal was required to have regard to (i) the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and (b) the likelihood of further criminal conduct taking into account available information. b) At Paragraph 34 of the Delegate's Decision (the "Decision"), the Delegate acknowledged that the Applicant's anti-social behaviour after drinking was evidence in his most recent violent offending. c) Paragraph 37 of the Decision, the sentencing Judge noted that the Applicant had prospects for rehabilitation if he addressed his alcohol abuse. d) At paragraph 32 the Delegate found that "… should Mr Mataia re-offend in a similar manner, it may result in a physical, psychological and/or emotional harm to members of the Australian Community" e) The Delegate's assessment failed to take into account the likelihood of the Applicant reoffending in a similar manner if as acknowledged by the Judge - he addressed his alcohol abuse. The applicant contends that in the Delegate's assessment the Delegate completely discounted the role that alcohol played in the commission of the offence. f) Likewise in assessing the risk to the Australian community should the applicant commit further offences or engage in serious conduct pursuant to cl 13.1.2 of the Direction, the Tribunal failed to address or articulate the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal are other serious conduct.

Part C of the Direction 23 The relevant factors that must be considered in making a decision to revoke a mandatory cancellation of a visa under s 501CA are identified in Part C of the Direction: cl 7.1(b). 24 Clause 13 of the Direction appears in Part C under the heading "Primary considerations – revocation requests". Clause 13 relevantly provides: (1) … Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations: a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian community. 25 Clause 13.1 of the Direction provides: Protection of the Australian community (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. (2) Decision-makers should also give consideration to: a) The nature and seriousness of the non-Citizen's conduct to date; and b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 26 Under the heading "The nature and seriousness of the conduct", cl 13.1.1 sets out matters relevant to that consideration. 27 Clause 13.1.2 provides as follows: 13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers 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. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. (2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken). 28 Clause 13.2 then sets out matters relevant to "Best interests of minor children in Australia affected by the decision". Clause 13.3 sets out matters relevant to "Expectations of the Australian community".

Mr Mataia's submissions 29 Mr Jacob's written and oral submissions on Mr Mataia's behalf were not easy to follow. He could not explain the relevance of the references to the delegate's decision in the particulars. The effect of Mr Jacob's oral submissions is that paragraph e) of the particulars to Ground 1 and paragraph [22] of his written submissions should be taken to be references to the Tribunal's reasons, not the delegate's reasons. 30 As I interpret his written submissions at [19]-[21], Mr Jacob accepts that the Tribunal has no duty to evaluate the risk of harm to the Australian community in any particular way under cl 13.1.2 (which is set out at [27] above) save that whatever is taken into account must be logical and rational. He relies on BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J. He says that in performing the tasks required by cl 13.1.2(2) the Tribunal must take into account available information and evidence on the risk of reoffending, however, no language in cl 13.1.2 requires the Tribunal to provide an estimate of the extent of the likelihood of re-offending, citing Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [65] per Burley J. 31 It appears to me that Mr Jacob had essentially two complaints under this ground. 32 The first complaint appears to be that the Tribunal did not properly assess the risk of re-offending because it did not take into account all of the available information and thereby "discounted the role that alcohol played in the commission of offences". 33 Mr Jacob's written submissions appear to acknowledge that the Tribunal took into account Mr Mataia's criminal history as a primary consideration, that it accepted that alcohol (among other things) was a factor involved in all of the offences for which he was convicted, that he began drinking in year 10 when he dropped out of school, that the Tribunal accepted that he had not offended since 2014 (while pointing out that he had been incarcerated since then), that the Tribunal considered Mr Mataia's conduct while in prison and noted that he was paroled at the earliest time specified in his sentence, that it concluded that Mr Mataia's conduct to date had not demonstrated an ability to avoid drinking alcohol, and that the Tribunal was therefore not persuaded that he would not drink alcohol when he was released into the community. 34 He says that, in assessing the possibility of Mr Mataia's rehabilitation or re-offending, Mr Mataia's abuse of alcohol should have played a larger part in the Tribunal's decision. He says the Tribunal should have taken into account the available evidence, being the pre-sentencing report which was before the District Court Judge in November 2015 and sentencing remarks made by the Judge in relation to the 2014 offences. In the course the sentencing remarks the Judge found that Mr Mataia (and a co-defendant) had prospects for rehabilitation noting that they had had paid employment in the past, they retain the support of their families and Mr Mataia has the support of the Hillsong Church. The Judge then found (emphasis in the submission): … Hopefully, in addition to the supervision to be given to them upon their release by Community Corrections their associated churches can also provide them with guidance and influence to lead law abiding lives. They both need to address their abuse of alcohol which has commenced in a significant way at a young age resulting in the commission of serious criminal offences. If they are able to successfully rehabilitate themselves, then the likelihood of them re-offending will be significantly reduced. 35 Mr Jacob says that the Tribunal should have considered the likelihood of Mr Mataia reoffending in the same way as the District Court Judge did and it thereby "discounted the role that alcohol played in the commission of offences" by failing to take into account that, with counselling, Mr Mataia would have been in a much lower category of risk. 36 The second complaint appears to be that the Tribunal did not "address or articulate the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct" as required by cl 13.1.2(2)(a). In his written submissions at [24] Mr Jacob relied on the emphasised words set out below from Chen at [67]: In adopting this approach, the Tribunal focused on what might happen in the future, and gave consideration to the likelihood of the applicant reoffending, in the circumstances facing him upon his release. In addition, the Tribunal assessed the nature of the harm caused to individuals or the Australian community, should the applicant reoffend and concluded that there would be potentially significant and irreparable financial and psychological damage to the Australian community if the applicant were to reoffend. 37 In his written submissions at [25], Mr Jacob then noted that the delegate similarly found at [32] of its decision record that: "… should Mr Mataia re-offend in a similar manner, it may result in a physical, psychological and/or emotional harm to members of the Australian" community. 38 Accordingly, Mr Jacob says that the Tribunal's decision is affected by jurisdictional error.

Consideration 39 I will not separately set out the Minister's submissions in relation to this ground but rather address them as part of the consideration of the submissions put on behalf of Mr Mataia. 40 The first ground cannot be made out. 41 I accept the Minister's submission that any error by the delegate is irrelevant to whether the Tribunal fell into jurisdictional error and the delegate's decision is not and could not be the subject of this review application. 42 As noted by the Minister, the matters in cl 13.1.2(2)(a) and (b) are not themselves primary considerations: they are matters that the Tribunal must "have regard to" in the course of its deliberations on the primary consideration of protecting the Australian community: Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588 at [39] per Jacobson J, affirmed by the Full Court at (2013) 229 FCR 290; FCAFC 141. A failure to have regard to those matters would constitute a jurisdictional error: Salahuddin 229 FCR 290 at [14] per Flick J with whom Katzmann and Wigney JJ agreed at [27] and [34]. 43 At [67] of its reasons, the Tribunal stated that it was "[t]aking into account all the above" when it found that Mr Mataia represents an unacceptable risk of harm to individuals and groups in the Australian community. As can be seen from the summary of the Tribunal's reasons, in the material "above", the Tribunal carried out in substance the exercise required by cl 13.1.3(2). It made a cumulative assessment of the seriousness of Mr Mataia's past conduct, the harm caused by it (physical and psychological damage to people and theft and damage to property) and the factors that led to it: his inability to avoid alcohol or bad company, his nature as a "follower" and his lack of insight into his conduct and its impact on victims, together with its assessment of the representations made on his behalf about the quality of Mr Mataia's remorse and rehabilitation. 44 It is true that the likelihood of Mr Mataia offending in the future would be reduced if he rehabilitates (as the District Court Judge said) after receiving counselling (as suggested by Mr Jacob). However, the Tribunal made specific findings that Mr Mataia was unlikely to avoid alcohol upon his release from custody, that he had had little access to counselling while in prison, his resolve to rehabilitate was untested and that the existence of a support network of family and Hillsong Church had not prevented him from offending in the past. It also noted that alcohol had not been a factor in the incidents which occurred while Mr Mataia was in prison. I accept that the force of these findings is that, taking all of this into account, there was a real risk that Mr Mataia would re-offend with the prospect of future harm to the Australian community of the kind that he wrought in the past and that that risk was unacceptable. I do not accept that the Tribunal "discounted" the role that alcohol played in the commission of offences by Mr Mataia and there is no error in its failure to formulate the issue in the same way as the District Court Judge. 45 It would have been both better and prudent for the Tribunal to have used the language in cl 13.1.2(a) and (b), as noted by Katzmann J in the Full Court in Salahuddin 229 FCR 290 at [31]. However, the failure to "articulate" that language does not, of itself, establish jurisdictional error.

Ground 2 46 The second ground of the amended application was (as written): 2. Ground 2: Jurisdictional Error - The Tribunal failed to accord the Applicant procedural fairness in circumstances where the exercise of the statutory power to revoke the cancellation of the Applicant's power attracted the requirement for procedural fairness. a) At paragraph 36 of the Decision, the Delegate noted that it had regard to a pre-sentence report referred to by the sentencing judge. The writer of the Pre-sentence report was of the opinion that the Applicant had not developed "insight into the impact on seriousness of his offending behaviour" and that his explanations of offending were an attempt to "minimise his actions". b) The Tribunal failed to give the Applicant an opportunity to put information and submissions to the Tribunal to qualify or rebut the adverse information in the pre-sentence report in circumstances where the Tribunal relied on that information in its decision, to the Applicant's detriment. 47 Mr Jacob submitted that the adverse information in the pre-sentence report led the delegate to disbelieve some critical information supplied by Mr Mataia. That adverse information was relied on by the Tribunal. In those circumstances, it was necessary for the Tribunal, to "expose the information to the applicant and given the applicant the opportunity of responding to it before making a decision". Mr Jacob says that Mr Mataia was not given such an opportunity and therefore the Tribunal denied him procedural fairness. This submission relied on Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42] per Tracey J. 48 This ground must also fail. 49 Paragraph [36] of the delegate's decision record states: 36. I have had regard to a pre-sentence report referred to by the sentencing Judge. The report writer was of the opinion that Mr MATAIA had not developed 'insight into the impact and seriousness of his offending behaviour' and that his explanations for offending were an attempt to 'minimise his actions". 50 I accept the Minister's submission that it is apparent from this paragraph of the delegate's decision record that the delegate considered it an issue that the pre-sentence report found that Mr Mataia had not developed insight into his offending. Mr Mataia was therefore on notice that this was an issue adverse to him which may be an issue arising in the Tribunal's review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; HCA 63 at [35]. From the terms of this paragraph of the delegate's decision record and the Judge's sentencing remarks, Mr Mataia was put on notice of the substance of this aspect of the pre-sentence report. Copies of both the decision record and the Judge's sentencing remarks were provided to Mr Mataia under cover of a letter from the Department dated 14 October 2016, well before the Tribunal hearing. The pre-sentence report does not appear to have been before the delegate, since it is not included in the list of evidence before it, although the sentencing Judge's remarks were. Having been received under subpoena issued by the Tribunal, the pre-sentence report was provided to Mr Mataia's legal representative on 30 January 2016, ten days before the Tribunal hearing, which occurred on 9 and 10 February 2016. (The Minister relied on the affidavit of Tristian James Dimmock affirmed on 30 November 2017 to establish this.) 51 Mr Mataia therefore had the opportunity to advance to the Tribunal whatever information and submissions he wished in order to qualify or rebut the opinion in the pre-sentence report. No procedural unfairness is revealed in these circumstances. 52 For completeness: The Minister also submitted that the Tribunal did not rely on that part of the pre-sentence report in which its author opined that Mr Mataia had not developed insight into the impact and seriousness of his offending and that he had tried to minimise his actions. Instead, the Tribunal developed its own evaluation of the issue of Mr Mataia's insight into his offending and his remorse. The Minister says that [50] and [60] of its reasons demonstrate this. Those paragraphs provide as follows: 50 All the criminal offences reflect poor decision-making by the applicant in relation to the people he mixed with, his drinking of alcohol, and then doing what the people he was with did. His conduct is not consistent with the many claims made in references and by witnesses in their oral evidence, about his leadership, and his gentle and good nature. His conduct during the offences is that of a follower. He lacked insight into the impact of his actions on the victims. While he has expressed his regret and remorse, the Tribunal found his evidence formulaic and unpersuasive. He downplayed his responsibility for his actions. … 60 The applicant has expressed his remorse and regret, including for the harm caused to the victims of the 2014 offences, however, the Tribunal does not accept that his evidence reflects that he has insight into his conduct and its impact on victims, or that he genuinely accepts responsibility for his conduct. He tended to blame other people. The Tribunal does not accept that the applicant has shown strong signs of reform and rehabilitation. He has shown some signs of reform and rehabilitation. He has had the experience of being in prison and has expressed the wish not to return there. He has not spent any time in the community since the 2014 offences for his statements of good intention to be tested. 53 Even though there is no reference to the pre-sentence report in these paragraphs, both the pre-sentence report itself and the delegate's decision record were before the Tribunal. The Tribunal had read the pre-sentence report because it refers to it for other reasons at [41] and [44]. The fact that no reference was made to the pre-sentence report or the delegate's decision record in these paragraphs does not mean that the Tribunal's focus on these matters was not informed by those documents. However, that does not assist Mr Mataia to make out this ground. 54 As noted above, the delegate's decision record put Mr Mataia (and the Tribunal) on notice that the question of his insight into the impact of his offending and whether he tended to minimise his actions was in issue. The conclusion at [50] of the reasons is reached after extensive reflection by the Tribunal on the circumstances surrounding the 2014 offences and the prior offences. Given that material, it was open to the Tribunal to reach the same conclusion as the pre-sentencing report in relation to that period. Mr Mataia did in fact present evidence and submissions concerning this issue. He provided evidence about his remorse and rehabilitation addressed to his contention that he "understands the reasons for his past offending, the impact on the victims and how to stay out of trouble in the future". The Tribunal dealt with those submissions at [55]-[59] and the Tribunal's evaluation of these submissions informed its view expressed at [60]. I therefore accept that the Tribunal's conclusions were reached by its own evaluation of the evidence before it, including that given by Mr Mataia.

Ground 3 55 The third ground of the amended application was (as written): 3. Ground 3: Jurisdictional Error - The Tribunal's decision fell into error, in that it failed to apply and follow the guidelines and Direction No.65 in respect of the visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Particulars a) Given that the Applicant had lived in Australia for most of his life and from a young age, the Tribunal failed to apply Clause 6.3(5) of the Direction. Clause 6.3(5) provides that "However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of the life or from a very young age".

Relevant provisions of the Direction 56 Clause 6.1(4) of the Direction observes that the purpose of the Direction is to guide decision-makers in performing functions or exercising powers (among other things) to revoke a mandatory cancellation of a visa under s 501CA of the Migration Act, noting that under s 499(2A) "such decision-makers must comply with a direction made under section 499". 57 The "General Guidance" provided under cl 6.2(3) is that "[t]he principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA". 58 Principles set out in cl 6.3 relevantly include: (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime … should generally expect to … forfeit the privilege of staying in Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that will be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. 59 Clauses 7 and 8 appear under the heading "Section 2: Exercising the discretion". Those clauses relevantly provide: 7. How to exercise the discretion (1) Informed by the principles in 6.3 above, a decision-maker: (a) … (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. 8. Taking the relevant considerations into account (1) … (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations.

Mr Mataia's submission 60 Mr Jacob submitted that Mr Mataia arrived in Australia in 2007 being then aged 12 and spent only short periods here until 2008. Since then, he has departed Australia on only three occasions for periods of just over two weeks in 2012 and 2013. He therefore made the decision to reside permanently in Australia at the "very young age of 13". The Tribunal failed to apply cl 6.4(5) of the Direction by not giving due consideration to the young age at which Mr Mataia arrived in Australia and the fact that he has lived in Australia for most of his life. It should have been afforded him more tolerance.

Consideration 61 The Minister correctly submits that the principle in cl 6.3(5) is a not a mandatory relevant consideration. Rather, having regard to cl 7.1, in determining whether to revoke a mandatory cancellation decision, the decision-maker must take into account the primary and other considerations set out in Part C "informed by" the principle set out in cl 6.3(5). Clause 6.3(5) is not apt to be "applied", as it is a statement of likely societal attitudes about tolerance which "may" be afforded to serious conduct. 62 As previously noted, the Tribunal was plainly aware that it was obliged to "comply" with the Direction. I accept that Minister's submission that the Tribunal did "comply" with cl 6.3(5). The Tribunal noted at [81] that: 81. [Mr Mataia] had resided in Australia since the end of 2008, more than eight years. He lived in New Zealand until he was 14. He first offended in November 2011, then in March 2012, and most recently May 2014. He has been in prison and immigration detention since then, more than two and a half years, about a quarter of the time he has lived in Australia. … These are all matters which must be considered to comply with cl 6.3(5). Paragraph [81] went on to discuss Mr Mataia's contribution to Australia by his short time at work, being educated and his work with the Hillsong Church. The paragraph appears under the heading "Strength, nature and duration of ties to Australia" and it appears with other paragraphs that consider Mr Mataia' relationships with a range of people including his family (including aunts, uncles and cousins), referees and the Hillsong Church. At [86], the Tribunal concludes that "[o]n balance, this consideration weighs in favour of revocation of the decision to cancel the applicant's visa". 63 The extent of the level of tolerance and the weight to be afforded to this factor is a matter for the Tribunal alone. It is to be weighed against other factors as other principles set out in cl 6 demonstrate: for instance cl 6.3(4) states that some conduct might be so serious that any risk of re-offending is unacceptable. I accept the Minister's submission that this ground rises no higher than a dispute with the merits of the Tribunal's decision.

Falzon ground 64 At the time this matter was heard, the constitutional challenge to the validity of s 501(3A) in Falzon v Minister for Immigration and Border Protection had not been determined. Mr Mataia had indicated that he wished to rely on it and requested that his matter not be determined until that challenge had been determined. The High Court dismissed this ground of challenge on 7 February 2018: see (2018) 92 ALJR 201; HCA 2. Accordingly, this ground must also fail.

Conclusion 65 This application must be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate: Dated: 26 March 2018