Federal Court of Australia FSKY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 2 Appeal from: FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 File number: VID 329 of 2022 Judgment of: FARRELL, ANDERSON AND RAPER JJ Date of judgment: 20 January 2023 Catchwords: MIGRATION – appeal from orders of the Federal Court of Australia affirming a decision of the Administrative Appeals Tribunal (Tribunal) not to grant a protection visa by reason of the appellant being a danger to the Australian community – whether the Tribunal's reasons were illogical or irrational in finding both that there was a low to moderate risk of recidivism and that the appellant still posed a danger to the Australian community – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5, 5M, 36, 36(1C), 36(2), 501(3A), 501(6), 501(7) Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Art 33(2) Cases cited: DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060 FSKY and Minister for Home Affairs (Migration) [2018] AATA 4183 FSKY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2037 WKCG and Minister for Immigration and Citizenship [2009] AATA 512 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 67 Date of hearing: 9 November 2022 Counsel for the Appellant: Ms S Finegan Solicitor for the Appellant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr A Solomon-Bridge Counsel for the Second Respondent: The second respondent filed a submitting notice. Solicitor for the Respondents Sparke Helmore ORDERS VID 329 of 2022 BETWEEN: FSKY Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: FARRELL, ANDERSON AND RAPER JJ DATE OF ORDER: 20 January 2023 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). REASONS FOR JUDGMENT THE COURT: Introduction 1 This is an appeal from a decision of this Court made on 12 May 2022: FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 30 June 2021. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) made on 15 October 2020, refusing to grant the appellant a Protection (Class XA, subclass 866) visa (protection visa), pursuant to s 65 of the Migration Act 1958 (Cth). Whilst the delegate found that the appellant was a person in respect of whom Australia had protection obligations, the Tribunal affirmed the delegate's decision that the appellant had not met the criterion in s 36(1C) of the Act, having concluded that the appellant was a danger to the community after finding that he had been convicted by final judgment of a "particularly serious crime". 2 Leave to file the notice of appeal out of time was granted by this Court at the Full Court hearing such that the draft notice of appeal received by the Court on 10 June 2022 was treated as having been filed within time. Leave to amend the notice of appeal in terms of the amended draft notice of appeal received by the Court on 29 June 2022 was also granted. Background 3 The appellant was born in 1984 in Cambodia and is a Cambodian citizen. The appellant was orphaned by the age of 12. The appellant and his sisters lived with relatives in Cambodia after his parents had died. In 1997, the appellant's oldest sister applied for a Class UF Subclass 309 (Provisional Spouse) visa which included the appellant and his younger sister as dependents; this visa was granted on 7 December 1998. In October 1999, the appellant was granted a Spouse (Class BC Subclass 100) visa as a dependent applicant in Australia (dependant spouse visa). 4 This appeal concerns the process of reasoning required of a decision-maker when determining whether an applicant for a protection visa is "a danger to the Australian community" under s 36(1C)(b) of the Act. Here, the gravamen of the appellant's appeal is that it was not rational or logical for the Tribunal to find that he posed the "danger" to the Australian community required under s 36(1C)(b) where the Tribunal accepted that the appellant's risk of recidivism was "low to moderate". 5 For the reasons which follow, we dismiss the appeal. We do not accept that the primary judge fell into appellable error in finding that the Tribunal did not err in its determination that the appellant posed a danger to the Australian community – the strictures of s 36(1C)(b) involve a multifactorial assessment which include, but are not limited to, the risk of recidivism. Criminal history 6 In the period between 2001 and 2015 the appellant was convicted of 131 separate offences and crimes (including drug trafficking, drug use, possessing money and property being the proceeds of crime, possession of heroin/methamphetamine, theft, theft from a motor vehicle, drive under influence of drug, go equipped to steal/cheat, fail to answer bail, theft, obtain property by deception, possession of dangerous article in public place, cultivate narcotic plant, armed robbery) and served 10 terms of imprisonment. In November 2015, the appellant was convicted of Recklessly Causing Serious Injury, Fail Stop Accident, Unlicensed Driving and was sentenced to two years and six months' imprisonment (non-parole period of 18 months). Spousal visa cancellation 7 On 3 February 2017, the appellant's dependant spouse visa was cancelled pursuant to s 501(3A) of the Act because the appellant had failed to pass the "character test". This was on the basis that he had a "substantial criminal record" as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: ss 501(6)(a) and 501(7)(c) of the Act. Upon completion of his prison sentence, the appellant was transferred to immigration detention. Protection visa 8 The appellant first lodged an application for a protection visa on 3 April 2018 and that application was refused on 4 June 2018. 9 On 15 August 2018, a delegate of the Minister decided not to revoke the appellant's visa cancellation. On 8 November 2018, the Tribunal affirmed the decision of that delegate to not revoke the cancellation: FSKY and Minister for Home Affairs (Migration) [2018] AATA 4183. The Tribunal found that the appellant was a person in respect of whom Australia has protection obligations as a refugee under s 36(2)(a) of the Act. The Tribunal remitted the protection visa refusal decision to the Department of Immigration and Border Protection (as it then was) on the grounds that the applicant met the criterion in s 36(2)(a) of the Act. 10 On 15 October 2020, the delegate refused to grant the appellant a protection visa on the basis that he did not meet the criterion in s 36(1C) and was therefore ineligible under s 36(2)(b). On 30 June 2021, the Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa: FSKY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2037. It is this decision that was the subject of the relevant review before the primary judge and is the subject of this appeal. The legislative context 11 The relevant statutory provisions are as follows. 12 Section 501 of the Act provides the circumstances where a visa may be refused or cancelled on character grounds. Relevant to this appeal, s 501(3A) of the Act provides for the circumstances where it is mandatory for the Minister to cancel a visa, namely by the person not passing the character test because of their "substantial criminal record" as defined in s 501(7) of the Act. Those parts of the provision are extracted as follows: Decision of Minister—natural justice does not apply … (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. … Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; (Emphasis added.) 13 In order for a person to be eligible for a protection visa, he or she must satisfy the criteria under s 36 of the Act, which provides (only the portions relevant to this appeal are extracted): (1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). … (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia's security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. Note: For paragraph (b), see section 5M. (Emphasis added.) 14 For the purposes of construing the requirements of s 36(1C), a "particularly serious crime" is defined in s 5M of the Act as follows: For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of: (a) a serious Australian offence; or (b) a serious foreign offence. 15 "[S]erious Australian offence" is defined in s 5 of the Act as follows: serious Australian offence means an offence against a law in force in Australia, where: (a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or (iii) involves serious damage to property; or (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and (b) the offence is punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years; or (iii) imprisonment for a maximum term of not less than 3 years. (Emphasis in original.) The Tribunal's decision 16 On 30 June 2021, in its reasons for decision (T), the Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa. 17 The Tribunal found that the purpose of s 36(1C) of the Act is to give effect in domestic law to Art 33(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). Article 33(2) operates as a "compromise" that enables a state to maintain the integrity of its community despite a person being otherwise owed international protection obligations: T[108]–[109]. 18 As to the question of whether a person is a "danger to the community" within the meaning in s 36(1C), the Tribunal found that the determination does not involve the Tribunal balancing considerations, including whether the person has been found to be a refugee. Rather, the Tribunal's task is to address this question based on what the facts disclose and does not involve the exercise of a discretion: T[110]–[111]. 19 At T[112]–[113], the Tribunal adopted, as a "useful" but not exhaustive list of relevant factors to be considered in determining whether a person constitutes a danger to the Australian community, the factors identified by Tamberlin DP in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 at [26]–[29]. 20 The Tribunal recognised that the presence of violence in past offending constitutes an ingredient in assessing danger, but is not a mandatory one when construing the definition of "serious Australian offence" in s 5 of the Act: T[117]. 21 As to the first element of s 36(1C)(b), the Tribunal found that the appellant had been convicted of a "particularly serious crime": T[121]–[125]. 22 In respect of the second element of s 36(1C)(b), that is, whether the appellant is a "danger to the Australian community", the Tribunal said that, although the notion of danger has a logical origin in the person's previous criminal convictions, such an assessment is a "contemporary exercise". Citing WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060 (Davies J), the Tribunal found that it is a factual inquiry, specific to each case, and where the assessment of danger may not necessarily "directly" link to the offending which is just a starting point: T[126]. 23 As part of this factual inquiry, the Tribunal considered the appellant's risk of recidivism. The Tribunal referred to psychological evidence given to a differently constituted earlier Tribunal in the 2018 proceedings (FSKY and Minister for Home Affairs (Migration) [2018] AATA 4183). That evidence related to the appellant's "risk of relapse [to heroin use]" and risk of "re-offending" based on the appellant's (then) submission that his "offending" was "entirely drug-related". At T[138], the Tribunal said: When FSKY was before the Tribunal in 2018 in relation to the cancellation of his visa, the learned Member, Mr Maryniak, QC, heard evidence from Ms Elizabeth Warren, psychologist, and stated (T, p 749) at [38] of his decision: In oral evidence, Ms Warren stated that the Applicant's risk of relapse was on the 'cusp' of low to medium or just at the high end of low close to medium. Therefore, his risk of relapse to heroin use is not insignificant. To the extent that the Applicant maintains that his offending is entirely drug-related, it was submitted by the Respondent that there is at least a low to moderate risk of the Applicant re-offending and exposing the Australian community to more criminal behaviour. The Tribunal accepts this submission and finds accordingly. (Emphasis in original.) 24 The Tribunal then considered the evidence given by Mr Simmons, psychologist, in the 2021 Tribunal hearing. In his most recent report, Mr Simmons had written that the appellant was "aware" that "should he relapse" into drug addiction there would be a significant probability of him returning to offending and that he would face issues with respect to his immigration status. However, Mr Simmons noted that should the family support (along with employment) continue and should the appellant remain substance-free, there would be "little likelihood [that] he will commit further offences": T[139]. 25 The Tribunal noted that, based on his discussions with the appellant, Mr Simmons recorded that the appellant had undertaken "five or six residential drug related programs" as well as other courses, sometimes as a result of a Court order. However, the Tribunal concluded that despite the abatement of the appellant's offending in 2014 and 2015, none of the other courses appeared to have had much effect on preventing him from returning to re-offending: T[140]. 26 After referring to the conclusion of the earlier Tribunal (extracted at [23] above), the Tribunal made the following conclusion at T[141]: Because Mr Simmons' most recent conclusions were qualified by the conditions of FSKY's knowledge of the potential effect on his migration status and the existence of a supportive family, both of which have not had a material effect in the past, I prefer the conclusion of the previous Tribunal that there is at least a low to moderate risk of FSKY re-offending. 27 The Tribunal came to the conclusion that the appellant is a danger to the Australian community based on findings that: (a) The appellant had had a number of opportunities to rehabilitate but has nonetheless re-offended: T[142]; (b) The appellant had demonstrated an unwillingness to take responsibility for his actions when he had hurt people, demonstrated by particular offences, including "the most recent serious offending" in which he had "recklessly" injured his former partner. The Tribunal noted that the appellant's heroin addiction was not a central factor in that offending as he had not been affected by heroin at the time: T[142]; (c) The prospect of employment with the appellant's sister was not a protective factor as the appellant did not appear invested in the plan to work at his sister's business: (T[143]; (d) The provision of stable accommodation with family members was not a protective factor, based on the fact that the appellant had lived with these family members in the past but he nonetheless committed offences: T[144]; (e) The appellant had undertaken several targeted courses to reform his behaviour while he had been in prison but had nonetheless gone on to re-offend: T[145]; (f) Multiple previous warnings given to the appellant about the need to modify his behaviour in order to avoid migration status consequences did not affect his conduct: T[145]; and (g) Despite the appellant's "credible" abstinence from drug-taking, this was first "in the context of a custodial and therefore protective environment and while on a methadone treatment regimen" and secondly (as stated above at [27(b)]) his heroin addiction was not a factor in the most recent serious offending: T[145]–[146]. The primary judge's reasons 28 Before the primary judge, the appellant advanced the following grounds of review: 1. The Tribunal's decision is affected by jurisdictional error in that, in purporting to assess the level of risk that the Applicant posed to the community pursuant to s 36(1C)(b), the Tribunal erred in finding that a "low to moderate risk of reoffending" equated to a "high risk of reoffending" as required by law. In doing so the Tribunal was irrational and illogical in its reasoning, which no rational or logical decision maker could arrive at on the same evidence. 3. The Tribunal's decision is affected by jurisdictional error in that it erred in not applying the correct legal principle in relation to whether the Applicant is a danger to the Australian community pursuant to s 36(1C)(b). The Tribunal has applied the incorrect legal principles, and pursuant to s 5(1)(f) and (j) of the ADJR Act the decision is ultra vires. 5. The Tribunal's decision was affected by jurisdictional error when it failed to consider that there has been a particularly long lapse in time since the Applicant last offended and relapsed into heroin use, and that the Applicant was now in a different stage of his life. 6. The Tribunal's decision was affected by jurisdictional error when it failed to take into consideration the causal link between the Applicant's risk of reoffending and the Applicant's heroin use. 29 The primary judge dealt with grounds 1 and 3 together as they both concerned the Tribunal's assessment of "danger" in the context of s 36(1C)(b) (see J[57]). With respect to ground 1, the primary judge did not accept the appellant's submission that the Tribunal's reasons equated a "low to moderate risk" with the "high level of risk" test. Her Honour held that the "low to moderate risk" finding was made about the appellant's risk of re-offending in the context of the Tribunal considering Mr Simmons' evidence, and that this was only one of several factors that the Tribunal considered as part of the overall assessment of danger: at J[71]. 30 With respect to ground 3, the primary judge did not accept the appellant's submission that the Tribunal incorrectly adopted a standard that "the element of risk must be completely removed", which was based on the conclusions reached by the Tribunal at T[146]: see J[73]. Her Honour held that the Tribunal was "merely remarking that the bare fact of abstinence from drugs did not remove the risk of re-offending", and the Tribunal highlighted that the appellant was not affected by heroin at the time of his most recent serious offending: at J[74]. 31 The primary judge also rejected ground 5. Her Honour noted that the Tribunal made references to the appellant's stage of life, the period of abstinence from drug-use and the period of non-offending: see J[82]–[83]. However, the Tribunal noted (at T[145]) that it was concerned that the appellant had either been in immigration detention or imprisoned during this period of abstinence and non-offending, "thus restricting access to heroin and providing a "protective environment"": at J[83]. As such, it is clear that the Tribunal grappled with the appellant's submissions and it was open to the Tribunal to reach the conclusions that it did. 32 Finally, the primary judge held that ground 6 was not made out. Her Honour held that the Tribunal's reasons clearly demonstrated that it considered Mr Simmons' evidence as well as the links between the appellant's offending and his heroin use disorder: see J[88]. The Tribunal ultimately did not accept the submission that most of the appellant's offending was related to heroin use, and this conclusion was open to the Tribunal: J[89]–[90]. 33 Given none of the appellant's grounds were made out, her Honour dismissed the application. Ground of appeal 34 Crafted as one ground of appeal broadly similar to the grounds of review below, the appellant contends that the primary judge erred in failing to find that the Tribunal's reasoning was illogical and irrational when determining that the appellant posed a danger to the Australian community. 35 The appellant particularised his claim as follows: a. In its decision, the Federal Court of Australia found that the Tribunal did not fall into jurisdictional error, and was rational and logical in its reasoning [74]. b. In coming to this conclusion, the Court found: i. The Tribunal accepted the expert evidence that the Applicant had low to moderate risk of recidivism [69]; ii. The Tribunal also took into account other factors (per WKCG) including aggravating circumstances surrounding the applicant's offending, the length of the applicant's criminal history, and the perceived ineffectiveness of previous drug rehabilitation programs, employment and accommodation [71], [74]. c. The Court erred, as each of the other factors mentioned are factors that influence the Applicant's risk of recidivism, and none were found to increase the risk of recidivism above the accepted expert evidence (each of which were before the expert at the time the expert gave their finding). d. It is not rational or logical to accept the expert evidence regarding risk of recidivism as "low to moderate", and equate it to "a danger to the Australian Community", which is interpreted in the case law as a "high level of risk". e. The Court did not recognise the irrationality and illogicality of this reasoning, and therefore erred. f. Section 36(1C) of the Migration Act codifies Australia's obligations under the Refugee Convention. As the task before the Tribunal is a mandatory (rather than discretionary) one, the anticipated standard in imposing the legislation must be strictly one of fact and degree, with no scope for imposing a discretionary interpretation of the facts. (Footnotes omitted.) 36 In essence, the appellant contends that where the Tribunal adopted a view that the appellant's risk of recidivism was "low to moderate" (T[141], extracted at [26] above), it was irrational or illogical for it to find that the appellant poses the danger required under s 36(1C) of the Act. Consideration of the ground of appeal 37 The appellant contended that, for the appellant to present as being a "danger", he must pose a "high level of risk" – adopting the phrase used by Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 at [54]. 38 On the appellant's reading of s 36(1C), in the context of its codification of Australia's obligations under the Convention to protect persons from refoulement and the prospect of indefinite detention if the exception arises, the section constitutes a mandatory power for which a "strictness of logic" must be applied in order for a person to constitute the requisite kind of danger. On the appellant's submission, the demands of this "strictness of logic" required the decision-maker (here the Tribunal) to attribute "risk" to each of the criteria [or each criterion] that the Tribunal identified and the fact that it did not do so constituted jurisdictional error. 39 For the reasons which follow, we do not accept that the Tribunal erred in its determination that the appellant posed a danger to the Australian community under s 36(1C) of the Act. 40 First, the appellant correctly conceded at the hearing that the strictures of s 36(1C) involve a multifactorial assessment of considerations which include those identified by Tamberlin DP in WKCG at [25]–[31]. 41 In WKCG, the question of whether a person was a danger to the Australian community was considered in the context of the exception to a country's obligation to afford protection to refugees under Art 33(2) of the Convention. Deputy President Tamberlin found that: (a) The question of whether a person constitutes a "danger to the Australian community" is one of fact and degree. Regard must be had to all of the circumstances of each individual case: WKCG at [25]; (b) The person's criminal record must be considered as a whole and their prospects of rehabilitation must be assessed: WKCG at [26]; (c) Relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence(s) imposed, and any mitigating and aggravating circumstances. The extent of the criminal history (both nature of prior crimes and the period over which they took place) is also relevant: WKCG at [26]; (d) The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration, which involves a consideration of the person's previous general conduct and total criminal history: WKCG at [26] and [27]; (e) The assessment, which includes future conduct, involves a consideration of character and the possibility or probability of any threat which could be posed to a member or members of the Australian community: WGCG at [26]; (f) Once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community: WKCG at [29]; (g) Whilst the nature and circumstances of the conviction(s) will be highly relevant to the question, it is not conclusive and it will be necessary to look at the person's conduct in light of all the circumstances that have occurred up to the time of making the tribunal decision: WKCG at [29]; and (h) It is not necessary to establish that there is a probability of a real and immediate danger of present harm – the provision seeks to protect the community from both immediate harm and harm in the reasonably foreseeable future: WKCG at [31]. 42 Once it was conceded that the required assessment is "multifactorial" we do not understand how the appellant can successfully maintain the position that the Tribunal's decision was "illogical and unreasonable". 43 This is readily apparent from the Tribunal's reasoning: The Tribunal (at T[112]) extracted the relevant portions of WKCG (and thereafter adopted) its useful non-exhaustive 'list' of considerations when assessing whether a person is a 'danger to the community', namely – the seriousness and nature of the crimes and the sentences imposed (at T[129]–[134]), mitigating or aggravating circumstances (at T[135]–[136]), the period of offending (at T[137]), and the risk of recidivism (at T[138]–[141]). 44 Secondly, the appellant's contention as articulated in his submissions arises from an incorrect reading of Bromberg J's reasoning in KDSP. In KDSP at [54], his Honour considered what "danger" in the context of s 36(1C) was said to comprise: Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a "danger" to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word "danger" in s 36(1C) means "present and serious risk" (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a "particularly serious crime" (as defined by s 5M) and therefore be a "danger to the Australian community". 45 The appellant's contention appeared to assume that his Honour's reasoning meant that the level of risk to the Australian community which must be found to exist is a "high level of risk [of recidivism]". The appellant's counsel rightly conceded at hearing that this is not how "high level of risk" should be read. 46 Thirdly, it is clear from the Tribunal's reasons that it did, in fact, undertake the multifactorial assessment it was required to do. Contrary to the appellant's contention, the Tribunal's reasons are rational and logical. 47 The focus of the appellant's appeal was on one phrase in T[141] – namely that "there is at least a low to moderate risk of [the appellant] re-offending". 48 In isolation, this phrase may lead one to pause to consider whether, by reason of such a finding, a person could pose "a danger to the Australian community". However, care needs to be taken to understand the phrase within the context of the Tribunal's reasons as a whole. 49 Relevantly, in the context of adopting the test the appellant contends the Tribunal was required to adopt under KDSP (see T[127]), the Tribunal first considered the seriousness and nature of the crimes and sentences imposed (at T[129]–[134]). 50 In this context, and departing from the earlier Tribunal's finding, the Tribunal identified that "some" but (importantly) not all of the appellant's offending was "driven by his drug-taking": at T[129]. The Tribunal then found (at T[130]) that despite the fact that the courts had applied a wide range of sentencing and behaviour management tools, the appellant "returned to offending". In particular, the Tribunal described two occasions of violent offending (at T[131]–[132]) as follows: 131. In relation to the armed robbery and aggravated burglary convictions in 2002, the sentencing Judge related how FSKY and three others entered a house while the occupants were sleeping, wearing facial disguises. FSKY was carrying a machete, as was one of his co-offenders. The other two co-offenders carried, respectively, a sword and a handgun. A female occupant of the house woke to find the four intruders. She was told to remain still, or she would be killed. She and another female occupant were ordered to take off their jewellery and hand it over. Their telephone was cut off. One of the females was tied up. When she managed to untie herself, she was struck on the head three or four time [sic] by one of the co-offenders. A necklace and earrings were physically pulled from one of the women. 132. In relation to the 2015 offence for recklessly causing injury [(the 2015 incident)], that was a particularly serious offence because it involved FSKY injuring his then partner with the vehicle he was driving. I find, whilst perhaps not appreciating that he had injured her, FSKY knew he had inflicting [sic] some form of harm on her by knocking her down with the car. On his own evidence he got out briefly, but then re-entered the car and drove away. He did not attempt to assist her, nor call for aid. In fact, on his evidence at the Tribunal he did not have any further contact with her and found out about the extent of her injuries when he was shown photographs by the police of her broken ankle, two weeks later around the time of his arrest. The seriousness of the offence as viewed by the Courts is underlined by the fact that, on an appeal brought by FSKY, the County Court increased the sentence originally imposed by the Magistrates' Court. (Emphasis in original.) 51 The Tribunal (at T[133]) then drew conclusions as to the appellant's state of mind with respect to the 2015 incident and his "reckless[ness]" to the "real possibility of serious injury by his actions". 52 Importantly, the Tribunal's finding (at T[141]) must be understood in the context of the whole of its reasons on the topic of the risk of recidivism. The Tribunal said the following at T[138]–[141]: Risk of recidivism 138. When FSKY was before the Tribunal in 2018 in relation to the cancellation of his visa, the learned Member, Mr Maryniak, QC, heard evidence from Ms Elizabeth Warren, psychologist, and stated (T, p 749) at [38] of his decision: In oral evidence, Ms Warren stated that the Applicant's risk of relapse was on the 'cusp' of low to medium or just at the high end of low close to medium. Therefore, his risk of relapse to heroin use is not insignificant. To the extent that the Applicant maintains that his offending is entirely drug-related, it was submitted by the Respondent that there is at least a low to moderate risk of the Applicant re-offending and exposing the Australian community to more criminal behaviour. The Tribunal accepts this submission and finds accordingly. 139. Mr Simmons in his most recent report (A2) wrote that FSKY: …is aware that should he relapse, then the probability of returning to offending and the problems that would ensue with regard to his immigration status would be significant. He has the support of family and should that continue, along with any employment will go a way towards his remaining substance free….Should FSKY remain substance free, there is little likelihood he will commit further offences. 140. I note that Mr Simmons also records, based on his discussions with FSKY, that the Applicant has undertaken 'five or six residential drug related programs'. He has also undertaken a large number of courses, evidence of which was before the Tribunal, both while incarcerated and in the community, sometimes as the result of a Court order. While there was an abating of his offending in 2014 and 2015 up until the incident involving P, none of the other courses appear to have had much of an effect on preventing FSKY returning to re-offending. 141. Because Mr Simmons' most recent conclusions were qualified by the conditions of FSKY's knowledge of the potential effect on his migration status and the existence of a supportive family, both of which have not had a material effect in the past, I prefer the conclusion of the previous Tribunal that there is at least a low to moderate risk of FSKY re-offending. (Emphasis in original.) 53 These reasons reveal a number of things: First, the Tribunal accepted the earlier Tribunal's reasoning as identified at T[138]. Secondly, the earlier Tribunal's reasoning dealt with both the "risk of relapse" into heroin use which was "not insignificant" and the risk of "re-offending". Thirdly, the Tribunal then considered the most recent report of Mr Simmons (at T[139] and [140]) and expressed concern that despite the appellant having undertaken courses whilst incarcerated and in the community, "none of the other courses appear to have had much of an effect on preventing [the appellant] from returning to re-offending". Fourthly, the Tribunal referred to Mr Simmons' most recent conclusions being qualified by the knowledge of the potential effect on his migration status and the existence of a supportive family – "both of which have not had a material effect in the past" (at T[141]), such that the Tribunal found that "there is at least a low to moderate risk of [the appellant] re-offending" (emphasis added). 54 Under the 'heading' "Conclusion", the Tribunal went on to draw together the multifarious factors and to undertake the required evaluative exercise. 55 The Tribunal said the following at T[142]: The Tribunal is satisfied that FSKY has been convicted by final judgment of a particularly serious crime, within the terms of section 36(1C)(b) of the Act. The Tribunal has carefully considered whether the Applicant is (presently) a danger to the community. Given the number of times FSKY has had the opportunity presented to him to rehabilitate but has nonetheless re-offended, the Tribunal concludes that he is. Of particular concern to me is FSKY's evidence that, in terms of circumstances of the most recent serious offending where he recklessly injured his former partner, he was not affected by heroin. In his evidence at the hearing, the Applicant said that he had taken 'some sleeping pills' during the day. I therefore conclude that his significant heroin addiction problem was not a central factor in that serious offending. It is also concerning to me that the 2015 offence was not the first time FSKY had been convicted of offences of that nature. As set out above, in 2009 he was also convicted of the offence of Fail to Render Assistance after an Accident, and a related offence of Fail to give name and address to injured. Together with the Recklessly causing injury conviction in 2000, I consider there is some element of unwillingness of the Applicant to take responsibility for his actions when he has been directly involved in hurting people, and that is significantly concerning. (Emphasis in original in italics; emphasis in bold added.) 56 We note that the Tribunal identified that the appellant is "presently" a danger to the Australian community. Picking up from T[140], the Tribunal noted that, despite numerous opportunities to "rehabilitate", the appellant has nonetheless re-offended. Consistent with its finding at T[129], the Tribunal considered that the appellant was not affected by heroin when he "recklessly" injured his former partner and thus concluded that "his significant heroin addiction problem was not a central factor in that serious offending". 57 The Tribunal then went on to consider the protective factors available upon release (at T[143]–[145]) and to then conclude (at T[146]) as follows: I am not convinced that FSKY's creditable abstinence from drug-taking in detention completely removes the element of risk of re-offending, especially as it was not his major vice of heroin that was apparently a factor in his most recent serious offending in 2015 involving the injury to P. Consequently, I find there are reasonable grounds to conclude that FSKY is a danger to the community. 58 We do not consider that the primary judge erred in holding that the Tribunal's finding at T[146] was "merely remarking that the bare fact of abstinence from drugs did not remove the risk of re-offending" when the Tribunal highlighted that the appellant was not affected by heroin at the time of his most recent serious offending. 59 On this basis, the Court does not accept that the Tribunal's finding with respect to the risk of recidivism at T[141] constrained the Tribunal's ability to reach the conclusion that it did. Its reasoning was not "irrational" or "illogical". The finding of a "low to moderate risk" of recidivism will not impede a finding of "danger" – the test of "danger" is multifactorial, and as identified by WKCG and the Tribunal, it involves a complex assessment matrix (see WKCG at [26], approved by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636). 60 The nature of the past criminal behaviour is relevant, as submitted by the respondent. To isolate the bare probabilities of recidivism as constituting the relevant inquiry demanded by s 36(1C) would constitute error. By way of an illustration provided by the Minister, it would be misleading to describe one turn of a gun barrel in a game of Russian roulette as only exposing the participant to a 16.66% chance of harm (which may be assessed as a low to moderate risk in the abstract). One would, however, describe that exposure to being shot in the head as a "danger" to the person in the firing line. That would be so even if the odds were smaller because while the probability of a bullet emerging from the gun may be low, the consequence of the gun firing a shot to the participant's head is catastrophic. 61 As identified by the respondent, the appellant's complaint regarding the Tribunal's reasoning at T[141] involves a conflation of the Tribunal's adoption of the earlier Tribunal's assessment of the risk of recidivism ("low to moderate") for a particular purpose, on the one hand, with a broader inquiry as it pertained to the concept of "danger", on the other hand. This approach is entirely misconceived and the primary judge was correct in so holding at J[71]: I do not accept the applicant's submission that the Tribunal's reasons equate a "low to moderate risk" with the "high level of risk" test. The "low to moderate risk" finding was made about the applicant's risk of re-offending, in the context of the Tribunal considering Mr Simmons' evidence. This was but one factor the Tribunal considered, being a constituent part of the overall assessment of danger. As noted above, the Tribunal also considered, for example, aggravating circumstances surrounding the applicant's offending; the length of the applicant's criminal history; and the perceived ineffectiveness of previous drug rehabilitation programs, employment and accommodation [from the grounds of review or in their reasons]. 62 The appellant submitted, as an alternative argument, that after the Tribunal's "low to moderate" finding which was only concerned with recidivism (and not an overall risk/danger matrix), the Tribunal was required to identify and assess, by reference to the other factors, how the level of risk then adjusted up or down to arrive at an ultimate level of "danger to the Australian community". The appellant claimed that there was an absence of "evaluation" and, it seemed, reasons. 63 The appellant contends that the point is not new; the Minister disagrees. The Court did not have before it the transcript of the hearing before the primary judge. 64 Any party seeking to raise a new ground on appeal may only do so with leave on the basis that the "interests of justice" demand it: O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]–[94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. 65 Given the inability for the Court to determine, as a matter of fact, whether this argument is new, the Court nonetheless is of the view that the argument is without merit because it proceeds on the false premise that the Tribunal was bound to articulate expressly how the other factors increase the level of "danger" beyond the level of risk articulated with respect to recidivism. Whilst it is accepted that the absence of reasons may constitute jurisdictional error, here there was no such requirement to give them because there was no requirement to conduct the purported additional "risk" adjustment rating exercise. An intrinsically evaluative task, such as this one, is not susceptible to a great explication of the calibration of risk up and down according to each factor. We accept the submission of the respondent that the decision-maker's task, in this context, does not involve "moving discs on an abacus" but rather comprises a "melting pot" in which all factors, by instinctive synthesis, are given consideration. Conclusion 66 For these reasons, the appeal is dismissed with costs. 67 Finally, the Court expresses its gratitude to Ms Finegan of Counsel who appeared pro bono for the appellant in this matter. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Farrell, Anderson and Raper. Associate: Dated: 20 January 2023