Federal Court: Was the AAT obliged to call a psychologists for cross-examination? Was the AAT's reason illogical on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both [psychologists]' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?
Summary
The Applicant arrived in Australia on a student visa, after which he was convicted of some criminal offences and received 2 concurrent terms of imprisonment of 24 months.
The Applicant was then granted a Bridging Visa E (BVE) and a subclass 820 visa (temporary partner visa) despite the fact that he failed the character test pursuant to s 501(6) of the Migration Act 1958 (Cth).
The temporary partner visa was subsequently cancelled pursuant to s 501(3A) (mandatory character cancellation). The Appellant sought revocation of that cancellation pursuant to s 501CA(3), but the Minister refused to revoke the cancellation under s 501CA(4) (the non-revocation decision).
The Applicant then applied for merits review of the non-revocation decision to the AAT, which was bound by Direction No 65, cl 13.1.2(2) of which 'obliges the AAT to have regard to 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'.
There were 2 psychologist's reports before the Tribunal, one from Mr Green and the other from Mr Watson-Munro. Only Mr Watson-Munro was cross-examined by the AAT, despite the Applicant's request for Mr Green to be cross-examined.
The "Watson-Munro" report had been written before the Applicant was sentenced for the criminal offences mentioned above. The "Green report" was written after the Appellant had served his terms of imprisonment and for the purposes of the AAT application.
The Watson-Munro report expressed the opinion that the Applicant had "low to moderate risk of re-offending", whereas the Green report expressed the opinion that the risk of re-offending was "low".
In summary, the Tribunal expressed that it had "concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both Mr Munro-Watson and Mr Green" but nevertheless found that "the risk of the Applicant reoffending falls within the ranges provided by Mr Green and Mr Watson-Munro". The Tribunal concluded that the protection of the Australian community are 'bested served by the Applicant no longer being present in Australia' and affirmed the non-revocation decision.
The Tribunal acknowledged in its decision record that Mr Watson-Munro had not been cross-examined. Relevantly, Administrative Appeals Tribunal Act 1975 (Cth) included the following provisions:
2A In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
39
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
...
In making a finding about the Applicant's risk to re-offend, the Tribunal gave no weight to the fact that the 2 earlier decisions by the Department to grant the Applicant a visa 'were probative of the Minister having previously not considered him to pose an unacceptable risk to the Australian community'. Further, the Tribunal reasoned that 'it would appear that there is a good chance that the Applicant would not be granted a Partner (BS 801) permanent visa because he fails to pass the character test'.
The Applicant finally "appealed" the AAT's decision to the Federal Court (FCA) and the questions to the FCA were as follows:
Question 1: did ss 2A and 39 of the Administrative Appeals Tribunal Act 1975 (Cth) oblige the AAT to call Mr Green for cross-examination?
Question 2: was the Tribunal's reason illogical or irrational on the basis that, on the one hand, it expressed 'concerns about the reliability of the final conclusions in relation to recidivism presented in the reports of both Mr Munro-Watson and Mr Green' and, on the other hand, 'proceeded to accept both those assessments and use them effectively as bookends to a range which is expressed by the AAT as “‘low’ to ‘low to moderate’ risk” that the applicant will re-offend'?
Question 3: did 'the AAT [fall] into jurisdictional error in not giving weight to the fact that the two earlier decisions to grant him visas were probative of the Minister having previously not considered him to pose an unacceptable risk to the Australian community'?
Question 4: was it rationale for the the AAT to conjecture that there was a “good chance” that the Applicant would not be granted a permanent partner visa by reason of having failed the character test?
The FCA answered as follows: