Plaintiff M1/2021 distinguished due to para 8.1.2(2)(b)(i) of Direction 110?

The AAT affirmed a decision under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant's visa.

The Federal Court (FCA) said as follows about the findings of the AAT, which was bound to comply with Direction 110:

34    In the AAT, the Minister submitted that there was insufficient evidence that the applicant's risk of recidivism was low. In that respect, the Minister drew the AAT's attention to the following matters:

(a)    there was 'no evidence of a psychologist regarding the applicant's risk of recidivism';

...

(d)    although the applicant claimed to have rehabilitated from his criminal offending, there was no evidence that he had participated in any drug, family violence or criminal offending rehabilitation programs.

35    After recording the respective submissions that had been made by the parties, the AAT then gave consideration to the likelihood of the applicant engaging in further criminal or other serious conduct, as it was required to do by para 8.1.2(2)(b) of Direction 110. In that respect, the AAT commenced its consideration with the following observations at [96] of its reasons for decision:

The Applicant is asking the Tribunal to accept the church as the Applicant's source of rehabilitation and reform and in turn, relies on the fact of his claimed complete rehabilitation in submitting he will not reoffend. The Applicant accepts that he has asked this state of affairs be accepted in circumstances where he has not completed any formal rehabilitation of any kind, considers 'reform and rehabilitation is not to be shown by certificates' and presents the Tribunal with no opinion from a forensic psychologist or psychiatrist regarding risk of reoffending: ...

37    In a footnote at [96] of the AAT's reasons, the AAT observed that 'Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant'. This reflected what Mr Awit had said when he was cross-examined by the Minister's counsel.

39    Finally, and in a passage that is central to the applicant's complaint in his application for review, at [97(h)] of its reasons for decision, the AAT referred to the following matter that it also considered mitigated the weight to be placed on the applicant's claims of total rehabilitation:

As noted above, Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant. This lessens the Tribunal's confidence in his opinion that the Applicant is unlikely to reoffend and is a very low risk of relapse into substance use and leaves it in a position where it is without forensic opinion on risk of reoffending based on specialist knowledge or expertise.

40    The reference to something having been 'noted above', was a reference to the footnote that I identified at [37] of these reasons.

Some of the questions to the FCA were as follows:

Question 1: Can it be said that, "as the AAT in this case was obliged by para 8.1.2(2)(b)(i) of Direction 110 to take into account information and evidence on the risk of the applicant reoffending, the importance of such information and evidence to the exercise of the AAT's function, and the seriousness of any error in failing to take such evidence into account, is self-evident"?

Question 2: Can it be said that, "because Mr Awit's opinion about the applicant's risk of reoffending was a matter that it was required to take into account under para 8.1.2(2)(b)(i) of Direction 110, because it was evidence on the risk of the applicant reoffending, the AAT was required to understand Mr Awit's evidence about that issue"?

Question 3: Do the observations in Plaintiff M1/2021 at [23]-[24] apply a fortiori to the obligation imposed on decision-makers by para 8.1.2(2)(b)(i) of Direction 110?

Question 4: According to the FCA, "the majority in Plaintiff M1/2021 reached the conclusion that a decision-maker must 'read, identify, understand and evaluate' representations made for the purposes of s 501CA(4), even though that provision does not render every statement in a representation as a matter that is to be characterised as a mandatory relevant consideration". May that be contrasted with what is required by para 8.1.2(2)(b)(i) of Direction 110, in that para 8.1.2(2)(b)(i) renders 'information and evidence on the risk of the non-citizen re-offending' a mandatory relevant consideration?

Question 5: Was it open to the Tribunal to reason that its confidence in Mr Awit's opinion about the applicant's risk of reoffending had been 'lessened' because he had consulted with the applicant on two occasions and had no prior treating relationship with the applicant?

Question 6: Can it be said that, even though it was for the AAT to determine the weight that was to be afforded to Mr Awit's opinion, "as Mr Awit purported to give an opinion based on his specialised knowledge as a psychologist, to understand his evidence the AAT not only needed to comprehend the opinion itself, but also the basis on which Mr Awit purported to be qualified to give that opinion"?

Question 7: Can it be said that "the fact that the AAT made no reference to Mr Awit's unchallenged evidence that he had specialised knowledge based on his experience in providing risk assessments in a forensic context, and formed the view that its confidence in Mr Awit's opinion about the applicant's risk of reoffending was lessened, in part, simply because he was a general psychologist and not a forensic psychologist, establishes that it misunderstood Mr Awit's evidence"?

Question 8: If the answer to Question 7  is 'yes', would that error be material to the outcome, in that expert opinion about the likelihood of reoffending would be likely to be influential?

The FCA answered those questions as follows: