Where considerations not in evidence were not determinative, did the AAT's failure to put adverse considerations not in evidence to the expert where he was not called to give evidence before the AAT amount to procedural unfairness?

VKTT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 94 (4 June 2021)

Intro:-

The issue on appeal is whether the appellant was denied procedural fairness due to the way in which the Tribunal assessed the expert evidence of a clinical psychologist, Mr Mercurio Cicchini, in the form of a written report and a transcript of oral testimony given to the Tribunal. That evidence had been adduced before a differently constituted Tribunal whose decision affirming the Minister’s decision was set aside in an earlier case in this Court which remitted the matter to the Tribunal: VKTT v Minister for Home Affairs [2019] FCA 1018; 166 ALD 443 per Burley J. The written report and transcript of the oral testimony was then tendered to the second Tribunal whose decision was under review by the primary judge.

Facts:-

The appellant is a 41-year-old male citizen of New Zealand who arrived in Australia in 2006 as an adult aged 26 years.

On 2 June 2016, the appellant’s visa was mandatorily cancelled under s 501(3A) of the Act. The appellant had been sentenced on 11 February 2016 to multiple terms of imprisonment ranging from 3 months to 12 months for offending including “unlawful use of motor vehicles”, “dangerous operation of a vehicle”, “possessing dangerous drugs”, “assault or obstruct police officer” and other offences. He had been convicted of 46 offences in his country of origin and 16 offences in Australia.

The appellant’s procedural fairness complaint focuses on the Tribunal’s reasons in assessing a brief report (really, a short letter) by Mr Cicchini and Mr Cicchini’s oral testimony with regard to the risk of the appellant reoffending if the cancellation of his visa was revoked and he remained in Australia.

In cross-examination, Mr Cicchini was asked what he knew about the appellant’s criminal history. He said that his role “here and my role in seeing [the appellant]” was not to provide a forensic assessment of the appellant’s criminal history and that he presumed that that task had already been undertaken by another specialist. When pressed on his knowledge of the appellant’s criminal history, Mr Cicchini said that it was not included in his report because he did not do any assessment of the appellant’s criminal history.

It will be observed that Mr Cicchini said nothing directly about the risk of the appellant reoffending and in particular eschewed any suggestion that he had made any forensic assessment of the appellant’s criminal history.

After the appellant confirmed at the end of the second Tribunal hearing that he would not be calling Mr Cicchini, his representative said that in his written closing submissions he would address the weight which the Tribunal should place on witnesses who were not called, including Mr Cicchini.

The second Tribunal, in its reasoning, clearly regarded the question of the risk of the appellant reoffending as an important question. The Tribunal analysed the evidence relevant to this question at some length. The Tribunal also noted that Mr Cicchini’s report was prepared in October 2017 and was therefore more than two years old by the time of the second hearing and that the Tribunal had not been presented with any contemporary psychological reports.

The paragraphs of the Tribunal’s reasons that are most central to the appeal are reproduced at [16] of the primary judgment. In summary, they are as follows:-

"The Tribunal then said that it had found the testimony and report of Mr Cicchini to be of assistance, but that there was no evidence before the Tribunal that Mr Cicchini’s conclusions as to the risk of the appellant's reoffending were made with the benefit of the utilisation of any actuarial predictive instruments. Instead, his opinions were based on his own judgment which was made more than two years previously, and the Tribunal had not had the benefit of receiving any contemporary evidence from Mr Cicchini. As a result, the weight to be placed on his evidence was less than it otherwise would have been".

The Appellant's Complaint

The appellant’s complaint with regard to procedural fairness is that at no stage during the second Tribunal hearing was the issue of the absence of a “structured and actuarial approach to an assessment of the risk of reoffending” raised by the Tribunal until it was raised in its reasons contrary to the interests of, and adverse to, the appellant.

The appellant notes that the primary judge had said, with respect to the absence of a structured and actuarial approach, that “it is far from clear to me that this was in fact the ‘determining factor’”, and submits that in that respect the primary judge was in error. On this basis he submits that the primary judge misunderstood the Tribunal’s decision.

Issues:-

a) Did the AAT's treatment of expert evidence by it's failure to put adverse considerations not in evidence to the expert where he was not called to give evidence before the AAT amount to procedural unfairness which led to practical injustice?

b) whether considerations not in evidence were determinative of the decision on the issue said to be addressed by the expert.

Analysis:-

In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, it was found that the appellant had not been accorded procedural fairness. That was because nothing had been said to the appellant by the Tribunal that would have revealed to him that the points on which the Tribunal’s decision ultimately turned were live issues in the case (at [43]). It was held (at [44]) that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or to make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

Turning to the present case, in our view there is no error in the reasoning of the primary judge. That is because we share his Honour’s conclusion that the absence of “a structured and actuarial approach to an assessment of the risk of reoffending” by Mr Cicchini was by no means determinative in the Tribunal’s reasoning. The Tribunal was troubled by having insufficient evidence and no contemporaneous evidence on the question of the risk of the appellant reoffending. Fairly read, what the Tribunal said about the absence of a structured and actuarial approach to an assessment of the risk of reoffending was that had it had such evidence it would have been helpful. That is to say, what it said on the topic was not so much a criticism of Mr Cicchini’s evidence but an identification of what it did not have and what might have made things different. As far as it went, the Tribunal accepted Mr Cicchini’s evidence – it accepted Mr Cicchini’s diagnosis of the appellant, its origins in the traumatic events surrounding his childhood and that the appellant’s mental health had improved. The Tribunal’s remarks that the appellant seeks to impugn go only to identifying the nature of Mr Cicchini’s evidence, and its limitations, rather than criticising it on some fresh or previously unidentified basis.

The reality is that one can put what was said by the Tribunal about the absence of a structured and actuarial approach to an assessment of the risk of reoffending to one side, and one is still left with the Tribunal being dissatisfied with the value of Mr Cicchini’s evidence on the material question. That is because his views had been expressed more than two years previously, he had not given evidence so his views could neither be tested nor updated, he did not express a direct view on the material question of risk of reoffending, and in any event he was not in a position to do so because he was not familiar with the appellant’s history of offending. Indeed, Mr Cicchini’s own evidence had been that he had assumed that some other specialist would be responsible for that task. Understood in that light, the Tribunal’s excursus on a structured and actuarial approach was surplusage and immaterial.

In short, the criticism, if it was that, of Mr Cicchini’s evidence on the basis that he failed to adopt a structured and actuarial approach was not really to the point in the Tribunal’s assessment of Mr Cicchini’s evidence. To the point was that the evidence did not directly address the relevant question, being the risk of recidivism, and to the extent that it said anything relevant to that question it was out of date, he had not been made available for cross-examination and he had not studied the appellant’s criminal history.

With full appreciation of the importance of the issue of the risk of reoffending, the appellant was content to rely on what Mr Cicchini had put in writing, both in the form of his report and his earlier testimony, and to make submissions about the weight to be attached to it, without calling him as a witness. In those circumstances, the Tribunal cannot be criticised for not having put to Mr Cicchini any concerns as to the inadequacy or insufficiency of Mr Cicchini’s evidence that it might have had.

Moreover, there was no “practical injustice” in the approach taken by the Tribunal. See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38] per Bell, Gageler and Keane JJ. The appellant was on notice that his risk of reoffending was at issue before the second Tribunal and that Mr Cicchini’s report and previous oral evidence were not accepted by the Minister. Indeed, the first Tribunal had noted that Mr Cicchini had confirmed that he was unaware of the appellant’s criminal history and that his role was not to provide a forensic examination of that criminal history. The first Tribunal had concluded that it was highly probable that the appellant would inflict violence in the future and that his recent violent conduct was an indication of his future conduct. It cannot be suggested that the potential weakness of relying on the same material could come as a surprise.

Prior to the commencement of the remitted proceeding, the Tribunal and the Minister had been given to understand that the applicant would be calling Mr Cicchini to give updated evidence, but in the event he called neither him nor any other expert to more directly address his risk of reoffending. In those circumstances, the appellant was not prevented in any way from presenting a case on that issue and the case that he did present was, for the reasons given by the Tribunal, extremely weak. Mr Cicchini never expressed a direct opinion on the appellant’s risk of reoffending and he eschewed any suggestion that he had been tasked with doing so. Indeed, it can hardly be said that he could have expressed an opinion, expert or otherwise, upon which it was open to the Tribunal to place any weight when he had not studied the appellant’s history of offending.

Conclusion:-

For those reasons, the appeal should be dismissed. There is no apparent reason why the appellant should not pay the costs of the appeal.

In the circumstances, the appeal should be dismissed with costs.