FEDERAL COURT OF AUSTRALIA

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

THE ISSUE

1    The appellant arrived in Australia from Sri Lanka in mid-2009, then aged 22. In the following year, he was granted a protection visa. In August 2011, he attacked two men in the company of three other co-offenders. On 19 December 2013, he was sentenced to two and a half years imprisonment for grievous bodily harm and 12 months imprisonment for unlawful wounding to be served concurrently. His visa was the subject of a mandatory cancellation. A delegate of the Minister declined to revoke that decision.

2    The main issue raised in this appeal is the question of whether (and for what purposes), when considering to make a revocation decision, evidence inconsistent with the relevant conviction or sentence may be considered by an administrative decision-maker.

3    The appellant contends the primary judge erred in failing to find that the decision of the Administrative Appeals Tribunal was vitiated by jurisdictional error when it concluded it could not examine the facts upon which the appellant’s conviction was based and could not receive evidence that was inconsistent or contradicted evidence relied on by the District Court of Western Australia in convicting and sentencing.

4    The distinction the appellant draws is that as a matter of law the Tribunal was not entitled to go behind the conviction itself, but in considering revocation the Tribunal was entitled to receive evidence and to give such weight as it considered appropriate, which was contrary to or inconsistent with the evidence on which the conviction was based. There is also a ground contending irrationality.

THE STATUTORY FRAMEWORK AND ITS APPLICATION

5    The “character test” is defined in s 501 of the Migration Act 1958 (Cth). Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Section 501(3A) provides:

(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 Territory.

6    Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if “the person has a substantial criminal record (as defined by subsection (7))”.

7    Section 501(7) of the Migration Act relevantly provides:

(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; or

…

8    In this case, the appellant was convicted of grievous bodily harm and unlawful wounding of two victims. As noted, he was sentenced to two years and six months imprisonment for the charge of grievous bodily harm and 12 months imprisonment for unlawful wounding. The sentences were to be served concurrently with a minimum 15 months non-parole period. As a consequence of receiving a sentence of a term of imprisonment in excess of 12 months, the appellant has a substantial criminal record and does not, as a result, pass the character test. As the appellant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act (the cancellation decision).

9    Section 501CA(4) of the Migration Act provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with an invitation to do so; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

10    The appellant made representations as contemplated by s 501CA(4)(a). On 6 March 2017, the appellant was notified that a delegate of the Minster for Immigration and Border Protection (as he was then known) had made a decision not to revoke the appellant’s visa. The delegate was not satisfied that the appellant passed the character test and was not satisfied there was another reason why the cancellation decision should be revoked.

11    The appellant lodged an application for review of the decision of the delegate of the Minister in the Tribunal.

IN THE TRIBUNAL

12    In its decision, the Tribunal:

(a)    identified the evidence before it, recording that it had reviewed it;

(b)    found the appellant to not pass the character test;

(c)    identified the central question as being whether there was “another reason” to revoke the cancellation decision, noting that in considering the request for revocation it must comply with Direction No 65;

(d)    took into account as a primary consideration the protection of the Australian community and, in particular:

(i)    gave consideration to the seriousness of the appellant’s conduct, setting out the criminal record, extracts from transcript proceedings and submissions; and

(ii)    considered the risk to the Australian community should the appellant reoffend. It had regard to materials which led to recording its concern that the appellant had not fully recognised and dealt with the behaviours that led to the violent assault against two innocent men in 2011, finding that this demonstrated a lack of insight and reflected poorly on the appellant’s character.

13    After considering several aspects of Direction No 65, which are not directly contentious in this appeal, the Tribunal then turned to the nature of the convictions.

14    Particularly relevant to the appeal are the following two paragraphs of the Tribunal reasons (which in turn were cited at [21] of the primary judge’s reasons):

42    In oral evidence before this Tribunal, [the appellant] indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the metal bar, as found by the judge).

43    The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.

(Emphasis added.)

15    The Tribunal considered the preferable decision was to refuse to revoke the cancellation of the appellant’s visa and affirmed the decision under review (the revocation decision)

BEFORE THE PRIMARY JUDGE

16    The appellant sought judicial review of the revocation decision. On 20 November 2018, the application was dismissed by a judge of this Court. Three grounds were argued before the primary judge, however only two grounds were pressed on appeal. The grounds before the primary judge which are maintained on appeal were:

1.    The Tribunal erred by acting on a wrong principle in that the Tribunal acted on the premise that it could not examine the facts upon which the applicant’s conviction was based and could not receive evidence that was inconsistent with, or that contradicted, evidence relied on by the District Court of Western Australia in arriving at the conviction, when, as a matter of law, the Tribunal was not entitled to go behind the conviction but was entitled to receive, and to give such weight as it considered appropriate to, evidence contrary to, or inconsistent with, the evidence on which the conviction was based.

…

2.    The Tribunal erred by failing to engage in the fact-finding task and thereby constructively failed to exercise its jurisdiction and/or made a finding of fact that was irrational or illogical.

(Emphasis added, particulars omitted.)

17    After setting out the background and the grounds of review, the primary judge noted that in contrast to the position taken by the appellant before the Tribunal and reiterated before the primary judge, the sentencing judge remarked that:

(1)    The appellant found the relevant metal bar and armed himself with it.

(2)    He wielded the metal bar as a weapon.

(3)    He hit victims in the head with the metal bar and that one of the victims was hit with such force that he was knocked down and rendered momentarily unconscious.

(4)    As he had used the metal bar in the attack, he was culpable for charges of unlawful wounding.

(5)    There was no evidence that either of the victims said or did anything which might have provoked the appellant’s attack upon them.

(6)    All four men went to the house where the attack occurred with the specific intent of inflicting harm on one of the victims.

(7)    It was unclear what the motivation of those involved in the attacks was and, of the four men involved, the appellant was the most culpable in terms of the injuries he inflicted, although it was difficult say who of the four men was more culpable in terms of leadership and organisation.

18    In support of the first ground of review, the appellant relied upon several authorities, including, Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441. The contention was that the Tribunal could have and should have examined the facts on which the appellant’s conviction was based and could receive evidence of those matters, even if the evidence contradicted evidence relied upon by the District Court judge in sentencing. The appellant argued before the primary judge that whilst the Tribunal was required to respect the conviction itself, it was entitled to receive and give such weight as it considered appropriate to evidence contrary to, or inconsistent with, the findings of fact on which the conviction was based. The appellant placed emphasis on a statement by Fisher and Lockhart JJ in Daniele (at 359) to the effect that their Honours could not accept a submission that the Tribunal was not entitled to examine for itself all facts, including those necessarily found by the jury.

19    The appellant also referred to the observations of Sheppard J in Gungor (at 466) that:

[Fisher and Lockhart JJ’s statement in Daniele at 359] may suggest to some that the Tribunal is entitled to examine facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence – called before the Tribunal but not at the trial – would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, in light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli’s case and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.

20    Before the primary judge, the appellant contended that the statement by Fisher and Lockhart JJ in Daniele should have precedence over the interpretation of those views of Sheppard J in Gungor. Reliance was also placed on the fact that in Gungor, Fox J (at 449) expressly agreed with the reasons of Fisher and Lockhart JJ in Daniele.

21    The primary judge discussed earlier authorities (Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250, Gungor, Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180, Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49, Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313), before turning to Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

22    His Honour followed the Court of Appeal of the Supreme Court of Victoria (Beach, McLeish and Niall JJA) in LLF, where their Honours said (at [42]):

… The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

(Citations omitted.)

23    In particular, the primary judge restated (at [78]) that the applicable principles were:

(1)    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2)    Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

(Emphasis added.)

24    Importantly, his Honour concluded the second principle (i.e. that the power was not founded on the conviction), was inapplicable in this instance because the conviction was a precondition to the decision under s 501(3A) of the Migration Act and, in turn, the exercise of the power by the Tribunal.

25    The primary judge considered the statements of Fisher and Lockhart JJ in Daniele were of a more nuanced application than suggested by the appellant before him, having regard, in particular, to the preceding statements (at 358) of that decision where their Honours said:

There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case.

(Emphasis added.)

26    Their Honours continued to state (at 359-360):

It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereof in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.

(Emphasis added.)

27    The primary judge concluded that Sheppard J in Gungor was correct to conclude that Fisher and Lockhart JJ in Daniele were not going so far as to allow the Tribunal to challenge the fact of the conviction or the essential facts on which it was based.

28    His Honour accepted the Minister’s submission that the asserted inconsistency between Gungor and Daniele had not been recognised by any subsequent authority. It was clear from SRT that subsequent authorities have determined that the applicable principle was the first of the principles (set out above).

29    The primary judge was not satisfied that the Tribunal misunderstood or misstated the law. The Tribunal’s statement (at [43]) that it “cannot contradict or go behind a conviction and examine the facts upon which it is based” had to be read in context. Critically, the Tribunal went on to state:

However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.

30    The primary judge concluded, read in its totality, the statement by the Tribunal (at [43]) reflects the applicable principle of law. Ground 1 was dismissed.

31    As to the ground asserting irrationality, it was necessary for the appellant to succeed on a contention that the appellant’s narrative of what occurred on the day of the offences was not inconsistent with the conviction and were, therefore, simply matters of context for the Tribunal to weigh. His Honour concluded that the evidence that the appellant tried to break up a fight and acted in self-defence when approached in a threatening manner was evidence necessarily inconsistent with the facts the jury must have found in order to convict the appellant and inconsistent with the District Court judge’s sentencing remarks. To like effect were the appellant’s statements in evidence that he had little to do with the second assault and that he did not use the metal bar.

32    The primary judge rejected the second ground.

APPELLANT’S ARGUMENTS ON APPEAL

33    The appellant accepts that the foundation for the exercise of power under s 501(3A) of the Migration Act is, to the extent it relies on s 501(6)(e), the fact of conviction (and sentence). As such, s 501(3A) falls within the first category identified in LLF. Therefore, the appellant accepts that no challenge can be made to the fact of conviction or of the sentence imposed on him for the purposes of the exercise of the power under s 501(3A).

34    However, the appellant stresses that the position is different in relation to s 501CA(4) of the Migration Act which permits the Minister to revoke a decision under s 501(3A) if:

…

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(Emphasis added.)

35    The appellant stresses that the exercise of the power under s 501CA(4) is not founded on the fact of conviction or sentence. Rather, it is founded on the fact of an original decision having been made under s 501(3A) and the Minister being “satisfied” that the person either does pass the character test (which necessarily involves a direct challenge to the basis of the exercise of the power under s 501CA(4)) or that there is another reason why the original decision should be revoked.

36    As a matter of statutory construction, the appellant says, s 501CA(4) should not be construed so as to oblige the Minister to accept the conviction or sentence and its essential facts. Section 501CA(4) does not impose any obligation to accept past convictions and their essential facts when determining whether there is “another reason” why the original decision should be revoked.

37    The appellant’s submissions remain, as they were before the primary judge, that:

(a)    the line of authority commencing with Daniele has no application to a decision under s 501CA(4) of the Migration Act: cf s 501(3A); or

(b)    alternatively, the line of authority commencing with Daniele does not establish any general principle to the effect that an administrative decision-maker may not make findings of fact inconsistent with those necessarily found by a criminal trier of fact.

38    In either case, the appellant contends the question is one of statutory construction, the relevant question being whether the legislature intended that a decision-maker, when considering whether there is “another reason” why a cancellation decision should be revoked, may reach findings of fact inconsistent with the essential facts underpinning a conviction (or sentence, as the case may be), that were, in turn, the basis of the decision-maker’s state of satisfaction that the person failed the character test. The appellant’s argument is that, properly construed, s 501(3A) does not restrict a decision-maker from making findings of fact inconsistent with the essential facts underpinning a conviction or sentence, as the case may be, which facts would form the basis for the formation by the decision-maker of a decision of a state of satisfaction that the person failed the character test.

39    The appellant’s argument, as developed orally on the appeal, emphasised that Daniele was concerned with an exercise of power under s 12 of the Migration Act. That provision conferred a permissive power of deportation where a non-citizen had “been convicted” of certain offences. The appellant reiterated, in Daniele the conclusions were that:

(a)    while there are powerful reasons of public policy why a tribunal cannot ignore a conviction or “set it at naught”, the circumstances surrounding the commission of an offence and matters relating to the trial can be examined by a tribunal;

(b)    such an examination is for the purpose of enabling a tribunal to make its own assessment of the nature and gravity of the criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial;

(c)    while a tribunal is bound to accept “the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community”, a tribunal is entitled to examine for itself all facts, including those found by the jury; and

(d)    to conclude otherwise would be to attempt to introduce into proceedings of the tribunal a “doctrine equivalent to that of issue estoppel”.

40    These points, it is said, flow from the joint judgment of Fisher and Lockhart JJ. In his concurring judgment, Davies J observed that the conviction itself is evidence and usually strong evidence of the commission of the crime for which an applicant was convicted and that while some of the evidence before the Tribunal may tend to support the conviction, other parts “may tend to contradict it”. The “fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and to form its own judgement on all the matters which are relevant ‘to the exercise of the power of deportation’”. His Honour further stated that the task of the tribunal was much wider than that of the criminal court and that, as such, “the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value”.

41    The appellant points to the fact that Fisher J was a common member of the Full Court benches in both Daniele and Gungor, with Gungor decided less than a year after Daniele. In Gungor, Fox J held that the conviction must be conclusive in that a tribunal reviewing a decision takes the conviction and the Minister’s decision as a starting point. This reference to “conclusive” meant “conclusive as to the guilt of the accused in relation to the offence charged and of the sentence imposed”: Gungor per Fox J (at 446).

42    The appellant also takes issue with SRT. In SRT, it had been argued that so long as the decision-maker accepts the fact of conviction or sentence, it was open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing the sentence (at [42]). That proposition was rejected in SRT on the basis of Daniele, but the appellant says Daniele does not support rejection of that proposition.

43    The appellant says that Ali does not change the position in Daniele, nor does LLF where the parties were in agreement as to the legal principles without the point raised in this case being argued.

44    In the course of oral argument and in supplementary written submissions which the Court gave leave to file, a slightly different point emerged in debate. Daniele, Gungor and subsequent cases were concerned with the Migration Act as it existed at the time and, in particular, s 12. That section then operated on the basis that:

Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien.

The jurisdictional fact was the existence of conviction. The broader form of the power under s 501CA of the Migration Act was not conditioned on the fact of a conviction, but rather, on the Minister’s satisfaction. The appellant argued that the older cases are only good law if there is some overriding or overarching principle that whatever the source of power, the conviction or sentence cannot be contradicted. The appellant argued against that proposition in respect of the current legislation.

45    The appellant stresses that the “state of satisfaction” is not as to the conviction or sentence, but whether the person fails the character test. Admittedly, that question, in turn, is then answered by whether or not there has been a relevant conviction or sentence. The appellant contends, that analysis makes the older jurisprudence concerning the former s 12 redundant. The appellant also says LLF and the principles therein articulated does not advance the position, particularly because it is based on a foundation that the appellant contends is inapplicable in the s 501 context.

46    Shortly put, the argument is that where the jurisdictional fact is the Minister’s satisfaction, rather than the conviction or sentence, there is nothing in the statute to suggest that the decision-maker cannot look behind the facts that underpin the conviction or sentence. This is said to be particularly so in light of:

(a)    the breadth of the power that is conferred;

(b)    the serious consequences for an appellant who has a visa cancelled or refused;

(c)    the consequences for third parties of the cancellation or refusal; and

(d)    the fact that the character test is not concerned with guilt or innocence but only with the fact of conviction or sentence, whereas the revocation provisions are concerned with removing entry into Australia, or removal from Australia of a person.

47    This construction is preferable, the appellant contends, even if, as the Court put to counsel, it boils down to an applicant saying:

I am still a convicted [or] sentenced person but ‘another reason’ is a reason entirely inconsistent with the foundation for me being convicted or sentenced.

48    The appellant maintains that the state of satisfaction under s 501CA(4)(b)(i) is not limited to satisfaction that the person does not fail the character test by operation of those aspects of the character test on which the power under s 501(3A) rests, but on the whole of the character test as defined by s 501(6). As such, there is no commonality between the power to cancel under s 501(3A) and the power to revoke. In so far as the character test is concerned, the matters about which the Minister must be satisfied are broader under s 501CA than under s 501(3A).

49    During oral argument the parties were asked to give consideration to the meaning of the words “another reason” in s 501(CA)(4)(b)(ii). The appellant noted that the words “another reason” are words of expansion and should not be construed so as to exclude reasons connected to the subject matter of the character test. The appellant argues that the purpose of the syntactic structure is illustrated by a comparison with a different revocation power under s 501C(4).

50    Section 501C(4) contains a power to revoke a decision made under 501(3). Unlike s 501CA(4), the power under s 501C(4) may be exercised only where the person satisfies the Minister that the person passes the character test. (There is no scope for “another reason”. Notwithstanding the use of the word “may” in s 501C(4), if the Minister is satisfied that a person passes the character test, then the Minister has a duty to revoke the original cancellation: Roach v Minister for Immigration and Border Protection [2016] FCA 750 per Perry J (at [91]-[92])). Importantly, the appellant says, it does not avail a person whose visa is cancelled or refused under s 501(3) to argue that, for example, they were not guilty of the offence for which they were convicted or sentenced (as the case may be) or that, having failed the character test, there are compelling compassionate reasons why the cancelled visa should be revoked. The cancellation power and the revocation power are concerned only with the fact of the conviction or sentence (more accurately, the Minister’s state of satisfaction as to the conviction or sentence). In contrast, no such limitation applies, the appellant argues, to s 501CA.

51    There is no legislative intention, the appellant says, that a person who fails the character test on one of the bases set out in s 501(3A) must be excluded from Australia. That is evident from the structure of s 501CA(4), which empowers the Minister to revoke the cancellation decision if satisfied that the person meets the character test or for “another reason”. Thus, the statute specifically contemplates that a person may fail the character test but be permitted to hold a visa. Implicit in that contemplation, the appellant argues, is that a person who is in fact guilty of the crime for which they were convicted, and on which basis they failed the character test, may be permitted to stay in Australia. That this outcome is contemplated by the statute reinforces the protective purpose of the provisions and, in the case of s 501CA(4), the broad nature of the power to revoke the mandatory cancellation. The appellant contends, in light of the broad nature of the power conferred, it is hard to see why the power does not comprehend a situation in which the Minister makes a finding that the true facts are different from those underpinning the conviction. It is suggested it would be a perverse result if the power permitted the Minister to revoke the cancellation of a visa for a person properly convicted of a crime because of a compelling “… other reason”, but did not permit the Minister to revoke the cancellation of a visa if properly persuaded that the person did not in fact commit the crime but, for example, pleaded guilty on legal advice for practical reasons.

52    Relatedly, the appellant says, the considerations to be taken into account by the decision-maker are wider than those that resulted in the conviction or sentence. They are directed to a different purpose. The breadth of the discretion points against it being fettered other than by matters arising from the subject matter, scope and purpose of the Migration Act. There are reasons why a person might plead guilty to an offence they did not commit. In some of these cases, the person will mount a compelling argument about why they did so and persuade a decision-maker that, notwithstanding the conviction, the true facts are not the essential facts that were accepted for the purpose of the conviction being entered. The decision in Minister for Home Affairs v Sharma [2019] FCA 597 is such a case.

53    In Sharma, the Tribunal accepted that the applicant did not commit the offences as charged, but accepted responsibility only because he had been persuaded by his ex-wife that he would lose custody of their child. Sharma was a single judge decision on s 501 and did not raise the question of the meaning of the words “another reason” arising in this case. Sharma is said to throw light on the contradiction at the heart of the current jurisprudence. The appellant argues that Sharma directs attention to what the principle is that would allow an administrative decision-maker to reject the essential facts underpinning a person’s conviction because his conviction was one element of the evaluative process the decision-maker was required to engage in, but denies that power to an administrative decision-maker where the conviction is the source of power.

CONSIDERATION

54    The exercise of power under s 501CA(4) is not directly founded on the fact of conviction or sentence. Rather it is based on the fact of a decision having been made under s 501(3A), a person making representations in accordance with an invitation to do so, and the Minister being satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked. The question at the heart of the appeal is whether, as a matter of statutory construction, s 501CA(4) should be construed so as to oblige the Minister to accept the conviction or sentence and its essential facts.

55    Section 501(3A) and s 501CA(4) of the Migration Act are closely linked. The former provides for mandatory cancellation of a visa granted to a person in the event that the person has first, a substantial criminal record by virtue of having been sentenced to death, imprisonment for life or to a term of imprisonment of 12 months or more, or the person has been convicted of a sexual offence involving a child; and secondly, is serving a sentence of imprisonment. The latter gives the Minister a discretionary power to revoke a visa cancellation under s 501(3A) in prescribed circumstances. The power under s 501CA(4) cannot arise unless there has been a visa cancellation under s 501(3A) which, in turn, must have as its foundation, a conviction or a sentence of one of these kinds. Neither power would arise without the prior foundation of the requisite conviction or the sentence.

56    The reasoning of the Court of Appeal in LLF, with respect, is apt. In that instance, the Secretary made a mandatory decision under s 12(2) of the Working with Children Act 2005 (Vic), refusing LLF, the first respondent, an assessment notice. LLF then applied to the Victorian Civil & Administrative Tribunal under s 26A of the Children Act for an order directing that it be given an assessment notice. The Court of Appeal recorded (at [42]-[43]):

42    The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

43    It was accepted by both parties that the present case falls into the former category, because both the Secretary’s decision under s 12(2) of the Act and the Tribunal’s jurisdiction under s 26A depended upon the existence of the convictions which rendered LLF’s application a ‘category A application’.

(Citations omitted, emphasis added.)

57    In this case, there were two steps necessarily involved in the Tribunal reaching the decision which is impugned on appeal. First, a delegate mandatorily cancelled the appellant’s visa on the basis that the Minister was satisfied the appellant failed the “character test” because of the substantial criminal record. The delegate’s satisfaction was based on records of the appellant being sentenced in December 2013 consequent upon his conviction for grievous bodily harm and unlawful wounding in October 2013. The cancellation decision has not been impugned. It is uncontroversial that the delegate who made the cancellation decision was properly “satisfied” that the appellant failed the character test and had been sentenced to a term of imprisonment of 12 months or more following conviction.

58    The decision under review in this appeal is that of the Tribunal declining to revoke the cancellation decision under s 501CA(4) of the Migration Act. This involved determination of the question of whether the Tribunal was satisfied the applicant passed the “character test” as defined by s 501. The relevant decision-maker must decide for himself or herself whether the applicant passes the character test as defined in s 501(6) and may, in theory, come to a different conclusion than that reached during the cancellation decision. For example, the wrong person may have been identified or there may have been an error in the official record. In this instance, there was acceptance of the agreed position between the parties that the appellant had been sentenced to a term of imprisonment of more than 12 months and, therefore, came within s 501(7)(c) and did not pass the character test.

59    As a second step under s 501CA(4), the Tribunal was then required to consider whether there was “another reason” why the cancellation decision should be revoked.

60    In this second step, there were several considerations taken into account, including the nature and seriousness of the person’s conduct to date, which, in turn, included the conduct which gave rise to the conviction and the sentence. Conduct inconsistent with the conviction and sentence was not considered.

61    The appellant, in oral evidence to the Tribunal, denied he had acted in the manner described by the District Court judge in sentencing him. The Tribunal considered that it could not “contradict or go behind a conviction and examine the facts upon which it is based”. However, the Tribunal did note that this did not preclude an applicant from presenting matters pertaining to the conviction provided they did not “contradict the facts upon which a court found in arriving at a conviction”. It concluded as part of the consideration of the exercise of its discretion that some of the appellant’s offences were “violent” and that they were “unprovoked, organised, premeditated and that [the appellant] was more culpable than his friends”. The appellant’s denial of the District Court judge’s account was not in his favour because it meant that he had failed to acknowledge his role, thus undermining his expressed remorse. (Whether “evidence” contrary to the findings on sentencing could be used by the Tribunal for the purpose of assessing remorse, but would not otherwise be capable of being taken into account, is perhaps problematic. But is not the precise issue raised by the appellant who argues that the “evidence” could be taken into account for all purposes relevant to “another reason”)

62    In Daniele and Gungor, s 12 of the Migration Act conferred a power to order deportation where an alien had been convicted of an offence of a specified kind. SRT and Ali involved decisions under s 200 of the Migration Act, which replaced the former s 12 and was relevantly in the same form when read with s 201. The power which was exercised had to be founded on the objective fact of a conviction. These cases gave rise to the statement of principle in LLF and the principles that derive from these cases have subsequently been applied in single judge decisions in this Court.

63    Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends. That is the point of the deportation cases, as recently succinctly summarised in LLF. The position is not different in substance in the present situation where the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1).

64    A number of Full Court cases have examined the expression “another reason”: Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 per Collier, Logan and Murphy JJ; Navoto v Minister for Home Affairs [2019] FCAFC 135 per Middleton, Moshinsky and Anderson JJ; Romanov v Minister for Home Affairs [2019] FCAFC 13 per Flick, Bromwich and Lee JJ.

65    None of the cases had occasion to explore the question of whether the approach taken in LLF should apply to the “another reason” question as now argued.

66    In order to impugn the cancellation decision in this instance, it would be necessary to establish that the relevant state of satisfaction was not reached or was vitiated by legal error. Neither is suggested. In relation to the actual revocation decision itself, s 501CA(4)(b)(i) of the Migration Act expressly calls on the decision-maker to decide for himself or herself whether or not the non-citizen passes the character test. The exercise in s 501CA(4)(b)(ii) will not be reached if the assessment made is that the person does pass that test. In the present case, it was agreed and the Tribunal determined that the appellant did not pass the character test on the basis that he had been sentenced to a term of imprisonment greater than 12 months. The imposition of the sentence formed part of the essential underpinning for the consideration of the exercise of the power as conferred in s 501CA(4)(b)(ii).

67    It may be accepted that “another reason” is a broad expression. What is excluded from falling within the scope of the expression is the possibility of the applicant passing the character test as the decision-maker does not come to consider whether there exists “another reason” under s 501CA(4)(b)(ii) if the decision-maker is satisfied the person passes the character test. What does this mean in practical terms? Scope for satisfaction on the first limb in s 501CA(4)(b)(i) must be limited, for such satisfaction would seemingly only be arrived at where there was an error when the Minister was satisfied in s 501(3A)(a). The wrong person may have been identified or there may have been a material error in the charge record. There may be other possibilities, but to proceed to “another reason” there must be a lack of satisfaction that the person passes the character test, which in turn centres on, relevantly, conviction or sentence.

68    To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention. These provisions were introduced against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision-maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed. Can the jurisdictional fact being a “satisfaction” create a different requirement without express legislative expression to that effect? If anything, the scope for such evidence will be more limited in the latter situation. One can challenge the lack of satisfaction or assert that the failure to be satisfied was based on legal or jurisdictional error. But where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.

69    This approach accords with the analysis in Ali where Branson J said (at [40]-[45]):

40    What, if anything, do the subject matter, scope and purpose of [the Migration Act], seen in the light of the authorities, suggest about the way in which the above policy considerations should impact on an administrative decision-maker (whether the applicant or the Tribunal) in the exercise of the discretion created by s 200 of [the Migration Act]? In this regard it is significant, in my view, that in contrast with the provisions of the Social Security Act with which Ridley was concerned, s 201 of [the Migration Act] operates by reference to the fact of a criminal conviction. That is, the section presupposes the significance of criminal convictions.

41    First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).

42    Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of [the Migration Act], the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).

43    Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that [the Migration Act], to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)    recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and

(b)    limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).

As a consequence, in my view, [the Migration Act] should be construed as requiring a decision-maker under s 200 of [the Migration Act] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

44    Fourthly, although a decision-maker under s 200 of [the Migration Act] may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).

45    Fifthly, the above limitations on the matters to which a decision-maker under s 200 of [the Migration Act] is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

70    The evidence on which the appellant sought to rely would not be relevant in relation to the first limb in revocation. That is, it could not be relied upon by the Tribunal when considering whether it was satisfied that a person passes the character test. The argument advanced in this instance is that, given the scope of “another reason” and the importance of the subject matter to all concerned, that the fetter on reliance on facts which would contradict the essential facts of the conviction or sentence found by a court should not apply to the issue as to a satisfaction of “another reason” under the second limb.

71    The difficulty with this argument is that the foundation or genesis of the power for the second limb is still the conviction or sentence in that, without such conviction or sentence, the visa cancellation power under consideration could not have been exercised in the first place. The conviction or sentence is the immediate source of the power for the cancellation under s 501(3A) which, in turn, is a precondition to the revocation power under consideration. Without the conviction or sentence there could be no consideration of the second limb. There will be other cases in which a conviction or sentence can be part of the facts forming a broad range of considerations for the Minister’s evaluation, but in those circumstances, the conviction or sentence is not the trigger to enliven the Minister’s power to conduct that evaluation. In such cases, it is conceivable that evidence could be adduced as to facts which depart from those upon which a conviction was based. However, as indicated in the authorities, including Ali, in this second category of case the onus on someone wishing to prove such facts would be heavy. One such rare example is Sharma, where the decision challenged was the award of a visa by the Tribunal where the delegate had refused to grant a visa under s 501(1), relying on s 501(6)(d)(i). That is not the situation under consideration in the present circumstance.

72    Further, it is a point of note that the power that the Court is concerned with in this case is predicated on a sentence, not a conviction. While this is not to detract from the consideration set out above, here the power under s 501CA(4) arose after a cancellation decision having been made under s 501(3A)(a)(i), specifically that the appellant had a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more. The power under s 501CA(4) was enlivened after sentencing. Sentencing may be distinguished from conviction in that a sentencing judge is generally, depending on the state criminal statutory regime, required to consider the circumstances surrounding the commission of the offence for which the person was convicted and making findings of fact in relation to this inquiry.

73    It is for the sentencing court, alone, to decide the sentence to be imposed and for that purpose, the sentencer must find the relevant facts: GAS v The Queen (2004) 217 CLR 198 (at [30]). The majority of the High Court (Gleeson CJ Gaudron, Hayne and Callinan JJ) has acknowledged the significance of fact finding at sentencing in The Queen v Olbrich (1999) 199 CLR 270 (at [1]):

The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge’s conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.

(Emphasis added.)

74    In this case, the sentencing judge was operating under the Sentencing Act 1995 (WA) and guided by the following:

6.    Principles of sentencing

(1)    A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2)    The seriousness of an offence must be determined by taking into account —

(a)    the statutory penalty for the offence; and

(b)    the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

(c)    any aggravating factors; and

(d)    any mitigating factors.

(Emphasis added.)

75    The sentencing judge was required to make the factual findings which the appellant directly sought to impugn before the Tribunal.

76    Further, and consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.

77    As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

78    The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

79    The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground. Ground 1 must be rejected.

Ground 2

80    By ground 2, the appellant contended that the primary judge erred by failing to find that the Tribunal fell into jurisdictional error by failing to engage in the fact-finding task and thereby constructively failed to exercise its jurisdiction and/or made a finding of fact that was irrational or illogical.

81    The essential points are agreed between the parties:

(1)    The appellant gave evidence that went beyond the essential facts underpinning his conviction and sentence.

(2)    The Tribunal failed to make findings about those matters, believing that it had no power to do so.

82    The sentencing judge remarked that what was not clear during the trial, and remained unclear at sentencing, was the “motivation of those involved in these attacks” and that there was no evidence that the victims said or did anything to provoke the attack. The appellant wished to convey to the Tribunal (in addition to the facts on which the conviction and sentence depended) evidence as to:

(a)    the appellant’s contention that the offences were committed in the context of a Sri Lankan faction dispute in which he became involved while trying to support his friends;

(b)    the appellant’s contention that his lack of communication skills and difficulty integrating into Australian society played a significant factor in his committal of the offence as he did not understand the serious consequences of his actions at the time; and

(c)    the fact there was a fight between quarrelling factions in the house.

83    The appellant also argues it was not sufficient for the Tribunal to simply refer to all of the documents referred to by the appellant, as was done, and then to state that the Tribunal has reviewed all of the material before it. Courts have long cautioned that statements of a formulaic kind or sweeping statements that all representations and documents have been considered will not shield from scrutiny whether in substance they have: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [43]-[47]); WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Hely JJ (at [45]-[47]). The appellant argues that the Tribunal did not make findings about the appellant’s evidence, which went to the heart of questions about the seriousness of his conduct and the risk he presented to the Australian community. It was substantial and consequential evidence led in support of the “another reason” advanced by the appellant as to why the cancellation decision should have been revoked.

84    It cannot be said, the appellant argues, that if the Tribunal had considered and accepted the appellant’s evidence about the circumstances surrounding the offending that the result would not have been different. If accepted, the appellant’s evidence permitted the Tribunal to temper its view about the seriousness of the offending. In circumstances where the seriousness of the offending was a key feature of the Tribunals reasons, an acceptance of facts that might have tempered the Tribunal’s view on that question might have changed the result. The appellant contends that it cannot be said that the error was not material.

85    As to this ground, the primary judge recorded the submission that the appellant’s narrative of what occurred on the day of the offences were matters of context and were not inconsistent with the appellant having been found guilty of the offences and, therefore, were matters that the Tribunal was required to have regard to and to weigh.

86    Although framed as an irrationality ground, it depends upon an acceptance that the Tribunal did not consider this new evidence by the appellant that was apparently not before the sentencing judge. In my view, this foundation is unsound. At the forefront of consideration by the Tribunal was the evidence for the appellant of other mitigating or exculpatory factors going to the conviction/sentence or at least its factual context. Some of those factors were set out by the Tribunal. There is no reason to conclude that just because not every detail was set out that the account was not considered. The fact that the Tribunal did not expressly refer to each element of the statements does not give rise to any jurisdictional error. The submissions made formed part of the documents before the Tribunal to which the Tribunal made specific reference, stating that it had reviewed all of the material before it. There was no further obligation on the part of the Tribunal to record a finding in relation to every item of evidence before it. In relation to the contention that the appellant’s lack of communication skills and difficulty integrating into the Australian community played a role in his offending, the Tribunal noted, in relation to the broad issue of the “seriousness” of the appellant’s conduct, the contentions made in the appellant’s Statement of Facts, Issues and Contentions, which included this very proposition.

87    As to the suggestion that the incidents arose in a factional dispute in which the appellant sought to support his friends, the Tribunal, again, recorded (at [42]):

In oral evidence before this Tribunal, [the appellant] indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the metal bar, as found by the judge).

88    The Tribunal was not at error in disregarding the appellant’s evidence on this topic. It sought to challenge the essential facts underlying the appellant’s conviction as noted by the primary judge. To the extent reference was made by the appellant to it being a factional dispute there was no requirement for the Tribunal to record this detail. Further, no explanation was given to the Tribunal as to why this detail as to the factional dispute was not raised at the criminal trial or sentencing.

89    The materiality contention is also questionable. Even if there had been a failure by the Tribunal to take into account this evidence of the appellant’s motivation for committing the offences, this did not amount to jurisdictional error. Having regard to the Tribunal’s reasons for its decision, such an omission would not be material, for even if it has been taken into account it could not realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 per Bell, Gageler and Keane JJ (at [38] and [44]-[45]).

CONCLUSION

90    The Court is grateful for the industrious and helpful assistance of pro bono counsel, Ms Kelly.

91    However, for the foregoing reasons, in my view, the appellant’s contentions as to jurisdictional error on the part of the Tribunal must be rejected and the appeal dismissed with costs.

Associate:

Dated:    21 November 2019

REASONS FOR JUDGMENT

DERRINGTON J:

92    This appeal concerns whether there is a principle of law which requires an administrative decision-maker not to consider the necessary facts underlying a criminal conviction or sentence where the fact of the conviction or sentence has a role in the genesis of the decision-maker’s power, by reference to the role of the Administrative Appeals Tribunal (the Tribunal) in reviewing a decision under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

93    In the preparation of these reasons I have had the distinct advantage of considering drafts of the reasons to be published by McKerracher and Colvin JJ. It is not without great hesitation that I have reached a conclusion which is contrary to their Honours on these difficult questions.

The facts

94    The appellant arrived in Australia on 28 June 2009. He was granted a protection visa on 15 September 2010. He was involved in a violent incident between members of a local community on 19 August 2011, during which some persons were injured. After a trial by jury in the District Court of Western Australia, he was convicted of the offences of grievous bodily harm and unlawful wounding on 30 October 2013. He was sentenced to a period of imprisonment of more than 12 months.

95    On 31 July 2015, following the appellant’s conviction and sentence, his visa was cancelled as required by s 501(3A) of the Act. The appellant made representations to the Minister about revocation of the cancellation decision as invited under s 501CA(3)(b).

96    On 6 March 2017, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision. The appellant sought review of the revocation decision by the Tribunal under s 500(1)(ba).

97    On 29 May 2017, the Tribunal affirmed the revocation decision.

98    Before the Tribunal, the appellant gave evidence about the events leading to his conviction which contradicted the key facts underlying it and some facts accepted in fixing his sentence. In its reasons the Tribunal said:

42. In oral evidence before this Tribunal, HZCP indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the metal bar, as found by the judge).

43. The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs [1983] AATA 180.

The proceedings

99    The appellant applied for judicial review of the Tribunal’s decision. The grounds of that application were substantially the same as the grounds in this appeal, as set out below. The application was dismissed. The primary judge held that the Tribunal had not acted on a wrong principle, and as such had not failed to engage in the fact-finding task as contended by the appellant. The primary judge also held that the Tribunal did not make findings of fact for which there was no evidence or which were irrational or illogical, as contended. The appellant appeals to this Court.

100    The grounds of appeal may be paraphrased as that the primary judge erred in failing to find that:

(1)    the Tribunal’s decision was vitiated by jurisdictional error by acting on a wrong principle, being that it could not examine the facts upon which the conviction was based and could not receive evidence inconsistent with or which contradicted evidence relied upon by the District Court when arriving at the conviction, when as a matter of law the Tribunal, although not entitled to go behind the conviction, was entitled to receive (and give such weight it considered appropriate) evidence contrary to or inconsistent with the evidence on which the conviction was based;

(2)    the Tribunal erred by failing to engage in the fact-finding task, and thereby constructively failed to exercise its jurisdiction or made a finding of fact that was irrational or illogical; and

(3)    the Tribunal erred by making findings of fact for which there was no evidence or that were irrational or illogical.

The second ground of appeal was said to follow from the first, and could only succeed if the first ground succeeded. The third ground was not pressed in oral or written submissions, or, to the extent it was, it was subsumed within the second ground.

The first and second grounds

101    The primary judge considered in detail the relevant authorities (at [41]-[77]) before restating the relevant principle as follows:

[78]    I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:

(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

[79]    The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. …

[85]    I am not satisfied that the Tribunal misunderstood or misstated the law. The Tribunal’s statement at [43] that it “cannot contradict or go behind a conviction and examine the facts upon which it is based” must be read in context. Critically, the Tribunal went on to say in the second sentence of [43] that:

However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.

[86]    Albeit stated in different words, read in its totality, the statement at [43] reflects the applicable principle of law. Ground 1 must be dismissed.

102    It is convenient to begin with the most recent intermediate appellate reference to the general principle in question, as adopted by the primary judge. In Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF), the Victorian Court of Appeal (Beach, McLeish and Niall JJA) said (at [42]-[43]):

The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for purpose other than impugning the conviction itself (SRT (1999) 91 FCR 234, 240 [25], 244 [40], 245 [46] (Branson, Lindgren and Emmett JJ); Daniele (1981) 61 FLR 354, 358 (Fisher and Lockhart JJ); Gungor (1982) 63 FLR 441, 445-6 (Fox J), 468-9 (Sheppard J); Ali (2000) 106 FCR 313, 325 [42] (Branson J).). In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based (Ridley v Secretary, Department of Social Security (1993) 42 FCR 276, 281-3 (Spender, Gummow and Lee JJ); Saffron (1991) 30 FCR 578, 582 (Davies J), 589-92 (Lockhart J); Ali (2000) 106 FCR 313, 325 [43] (Branson J)).

It was accepted by both parties that the present case falls into the former category, because both the Secretary’s decision under s 12(2) of the Act and the Tribunal’s jurisdiction under s 26A depended upon the existence of the convictions which rendered LLF’s application a ‘category A application’.

103    That case concerned the mandatory refusal to give an assessment notice under s 12(2) of the Working with Children Act 2005 (Vic) for a “category A application”, being defined in s 12(1)(d) and (e) by reference to certain charges, convictions or findings of guilt. The Victorian Civil and Administrative Tribunal’s jurisdiction under s 26A of that Act was said to depend upon the relevant conviction. It is relevant to note that the principles set out above from LLF were agreed to by the parties to that appeal.

The distant origins of the principles

104    The origins of the principles restated in LLF are in a series of decisions of this Court in relation to the then deportation power of the Minister under now repealed provisions. In the Migration Act 1958 as originally enacted, s 12 provided:

Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien.

105    In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 (Daniele) (delivered on 17 December 1981), the Full Court considered an appeal on a question of law from the Tribunal concerning its finding that the convicted alien applicant might have been acquitted had the trial judge not (in the Tribunal’s view) incorrectly directed the jury, and that the trial judge’s directions were (in the Tribunal’s view) so defective that they could have resulted in the conviction being quashed for a miscarriage of justice. As the reasons have assumed some importance and their interpretation has been contested, it is appropriate to set out the relevant parts at some length. On the Minister’s appeal, Fisher and Lockhart JJ said at 136-137:

The Minister asserts that the questions of law are as follows:

(1) The Tribunal erred in regarding as relevant the correctness of the summing up to the jury of the trial judge as to self-defence and in considering the matters which the jury might or might not have taken into account in arriving at their verdict.

(2) The Tribunal erred in concluding that the summing up was defective; that the jury must therefore have ignored the proportionality of the force used by reference to the danger in which the respondent might reasonably have believed himself to be placed; that if this matter had been taken into account by the jury it might have led to the respondent’s acquittal; and that these conclusions led the Tribunal to substantially diminish the importance of the conviction and to take into account irrelevant matters.

…

It is convenient to consider questions (1) and (2) together; but to understand them and the submissions of the parties it is necessary to state the course taken by the Tribunal in the reasons for decision. …

106    Their Honours then deal with the course of the Tribunal’s reasons, and continue at 138-139:

The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.

The Tribunal’s task includes assessing the deportee’s character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if he is deported.

Counsel for the applicant contended that the Tribunal in performance of this task was bound to accept the conviction and the facts necessarily found by the jury in reaching its verdict. We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community. However we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel. Such a doctrine has not found a sure place in respect of issues arising out of criminal proceedings either in this country or the United Kingdom and is even less at home in the proceedings of a Tribunal composed in part of laymen and directed to follow informal procedure.

107    Then, at 139-140:

Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) directing that proceedings should be conducted as far as possible with little formality and technicality and sub-s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.

…

In our opinion it was permissible for his Honour [the deputy president of the Tribunal] to ascertain what was the case made against the respondent at his trial so as to identify the matters which the jury must be taken to have accepted in reaching their verdict. Much weight will invariably be attached to these matters by the Tribunal in its task of evaluating the respondent’s conduct. However, we must say that we see no inconsistency between the judgment of Mason J in Viro, supra, and the trial judge’s directions to the jury on the respondent’s trial. We have read the summing up to the jury by the trial judge and his redirection to them after they asked his Honour to “reread that part of his Honour’s summing up which deals with self-defence and manslaughter”. In our opinion the trial judge made it sufficiently clear to the jury that they must consider whether the force used by the respondent in self-defence was proportionate to the danger which the respondent believed he faced from the deceased.

These comments by the Tribunal on the directions to the jury led him to conclude that if they had been properly instructed on the law as it has been defined by the High Court since the trial of the respondent, he might well have been acquitted by the jury and that probably the jury did not address their minds to the task of assessing the proportionality of the force used by reference to the danger in which the accused might reasonably have believed himself to be placed; and that this might well have resulted in the particular circumstances in a view of the case less favourable to the accused. Even if, contrary to our opinion, these conclusions of the deputy president are correct, they are matters for consideration, if at all, by courts of criminal appeal or the Crown in the exercise of its prerogative and not by the Tribunal.

It follows that the Tribunal took into account considerations which were irrelevant and thus it erred in law. The decision should therefore be set aside.

108    Their Honours then dealt with the other questions of law raised in that appeal which are not presently relevant.

109    The question of law identified on the appeal was whether the Tribunal erred by reason of taking into account irrelevant considerations. Those irrelevant considerations were said to be “the correctness of the summing up to the jury of the trial judge as to self-defence and … the matters which the jury might or might not have taken into account in arriving at their verdict” (from error (1)) and the consequence of that error was said to be that the Tribunals conclusions on those matters “led the Tribunal to substantially diminish the importance of the conviction and to take into account irrelevant matters” (from error (2)).

110    The question before their Honours was thus concerned with the Tribunal’s focus on the procedure of the trial. At 140, their Honours dispense with part of the alleged error: “In our opinion it was permissible for his Honour [the Tribunal] to ascertain what was the case made against the respondent at his trial so as to identify the matters which the jury must be taken to have accepted in reaching their verdict.” The error then identified in the remainder of the extract above was in taking into consideration the correctness of the trial judge’s summing up (and whether a “correct” summing-up might have resulted in a different view of the accused’s case). After identifying those matters, their Honours conclude that the Tribunal erred in law and the decision should be set aside.

111    This analysis reveals that their Honours’ comments about the scope of the Tribunal’s enquiry were directed at the Tribunal’s apparent fixation on the procedure (or “propriety”) of the criminal trial which led to the conviction, rather than as a criticism of considering the facts underlying the conviction. Indeed, their Honours expressly and in no uncertain terms deal with that latter question:

Counsel for the applicant contended that the Tribunal in performance of this task was bound to accept the conviction and the facts necessarily found by the jury in reaching its verdict. We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community. However we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury.

112    Davies J, reaching the same conclusion as Fisher and Lockhart JJ, reasoned the relevant question as follows, at 141-142:

In a review by the Administrative Appeals Tribunal of an order for deportation made under either s 12 or s 13 of the Migration Act 1958, it is not the function of the Tribunal to review the propriety of the relevant conviction. That is the function of appellate courts. While it stands, the conviction invokes the power to make the order and in itself affects the reputation or standing in the community of the convicted person. An immigrant seeking to be permitted to remain in Australia so that he may become fully assimilated into the community may be met with an argument that once convicted he no longer meets the standards required of persons, who in the exercise of discretion, will be permitted to enter or to become absorbed into the community. And the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.

But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the circumstances of the crime may or may not be admitted. The transcript of the evidence at the trial may or may not be put in evidence. The learned trial judge’s summing up or his remarks on sentence may or may not be in evidence. If the transcript of the proceedings at the trial or the learned trial judge’s summing up or his remarks on sentence are in evidence before the Tribunal, they may be taken as evidence of the matters which they state for s 33 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal is not bound by the rules of evidence. But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. There may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.

The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and to form its own judgment on all the matters which are relevant to the exercise of the power of deportation. Many of the matters which were in issue before the criminal court will also be either in issue or relevant to matters in issue before the Tribunal. But, because the scope of the enquiry before the Tribunal will ordinarily be much wider than the enquiry before the criminal court, it is likely that the Tribunal will have to examine the criminal activity with eyes different from those of the criminal jury. The total pattern of the deportee’s behaviour, including his criminal behaviour, his personality and characteristics, the risk of recidivism, the risk of harm to the community should he remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value.

No principle of estoppel precludes an examination of these matters. … Moreover, the review was conducted by a body, the Administrative Appeals Tribunal, which has an independent duty to investigate for itself the facts of the matter. The Tribunal is not restricted by any estoppel which binds a primary decision-maker or upon which the primary decision-maker may rely.

113    His Honour then addressed the key question at 145-147:

I have discussed at some length the approach which it is proper to take to such cases for Mr K Mason QC, senior counsel for the respondent, submitted that the Tribunal was bound to accept the conviction and the facts necessarily found by the jury. In my view, the Tribunal could itself examine all relevant facts including the facts behind the conviction, as was done in Ziems’ case, and, in my view, in the review of the order that Mr Daniele be deported, it was proper that it should do so.

Nevertheless, although the learned deputy president could and should have looked at those matters, it appears to me that this function of the Tribunal was not adequately performed and that there was, in the reasons for decision, undue concentration upon the circumstances of the trial. …

In my view, in the decision under appeal, the carrying out of the function which was imposed on the Tribunal, that of ascertaining all the facts, matters and circumstances relevant to Mr Daniele’s deportation, was restricted by an undue concentration upon the summing up to the jury by the learned trial judge.

…

Thus, the issues before the Administrative Appeals Tribunal were wider than were the issues before the jury. It was not in dispute that Mr Daniele had shot and killed Mr Canuto. Whether Mr Daniele had been guilty of such behaviour as justified a conviction for manslaughter was certainly a matter relevant to the enquiry which the Tribunal had to make but equally relevant was Mr Daniele’s pattern of life over his years in Australia, how he had come to adopt the practice of carrying a loaded pistol, what type of people he associated with, how he came to be involved in a shoot-out with Mr Canuto, what was the risk of recidivism and what was the risk of harm to others in the community should Mr Daniele remain in this country. It was relevant to enquire whether Mr Daniele still had the status of immigrant and whether, if so, he met the standard of persons who in the exercise of discretion are permitted to become assimilated into the Australian community.

It is not necessary that I deal in detail with the reasons for decision of the learned deputy president. It is sufficient to say that his Honour’s [the deputy president’s] reasons appear to concentrate upon the trial to the detriment of a full consideration of these wider circumstances which in my view it was the function of the Tribunal to examine. …

In my view, his Honour’s reasons did not deal with matters which were both relevant and significant to the decision to be made. As the Administrative Appeals Tribunal is required by s 43(2) of the Administrative Appeals Tribunal Act to give reasons in writing for its decision and in those reasons to state its findings on material questions of fact, the failure of the reasons to deal adequately with material issues must lead to the setting aside of the decision.

114    His Honour then set out the Tribunal’s approach to the summing-up of the trial judge, and concluded at 148:

In my opinion, the learned trial judge sufficiently made it clear to the jury in those passages that the jury was required to consider whether the force used in self-defence may have been proportionate to the danger which Mr Daniele believed he faced. Those passages were not referred to by the learned deputy president in his reasons.

It follows, in my view, that his Honour took into account an irrelevant consideration, namely, that, if the jury had been properly instructed, the applicant might well have been acquitted or, to adopt another statement of the learned deputy president, “That [the summing up] might well have resulted in particular circumstances in a view of the case less favourable to the accused”. That is a further ground for allowing the appeal.

115    Again, the reasons of Davies J reveal criticism of considering the irrelevant matter of the “propriety” of the conviction (that is, the trial process by which it was obtained). The possibility of examining evidence contradictory to the conviction was expressly approved: it is the use to which it was put in that case that gave rise to an irrelevant consideration.

116    Six days after the judgment in Daniele, the Full Court decided Degerli v Minister for Immigration and Ethnic Affairs (unreported, Keely, Fisher and Davies JJ, 23 December 1981). The bench shared two members with Daniele. In brief reasons, and without reference to Daniele or other authority, their Honours dismissed the appeal.

117    The necessary steps of the Court’s reasoning were:

(a)    that there was no error in relying upon a conviction as evidence of the facts found to be proved in reaching the conviction; and

(b)    that there was no evidence before the Tribunal contrary to the facts necessarily found by the jury in reaching the verdict, and as such it could not be contended that the Tribunal disregarded any relevant matters.

118    Prior to reaching the latter conclusion, their Honours indicated that reviewing the criminal procedure before and at trial would be to take into account an irrelevant consideration:

…the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. They are the concern of the Criminal Appeal Courts and of the prerogative of the Crown. If the Tribunal were to ignore the conviction or merely to act upon its own view as to the form of the indictment, the course of the trial, the correctness of the summing up and the propriety and consistency of the verdict and the penalty, it would take into account irrelevant considerations.

119    Their Honours rejected a submission that the Tribunal had misdirected itself:

It was submitted by Mr Nettlefold that the learned Deputy President unduly restricted his task. Mr Nettlefold placed weight upon the learned Deputy President’s statement that, ‘The conviction cannot be challenged before the Tribunal’. But in making this statement, his Honour was not intending to limit his consideration of relevant matters. … His Honour simply drew the distinction between the conviction which stands conclusively as a source of jurisdiction for the making of a deportation order and as a matter affecting the standing or credit in the community of the convicted person on the one hand and all the other facts and matters weighing in favour of or against deportation on the other. The latter matters may involve the Tribunal in considering the applicant’s behaviour, including his involvement in crime. But that task is not undertaken with a view to reviewing the conviction itself, for that is the function of the criminal courts.

If any criticism is to be made of the reasons of the learned Deputy President it is in respect of the words that he used in indicating the scope of his enquiry. To state that he will hear all evidence ‘even though it contradicts’ the conviction, and that his task is to ascertain ‘the real facts’ behind the conviction could suggest that the correctness of the conviction is a relevant factor. However, in our view he used these words not for such a purpose but to indicate that all the evidence was relevant for the purpose of assessing the conduct of the appellant. The Tribunal’s assessment of the nature and gravity of the conduct of the appellant both in relation to the particular offence and generally is of vital importance. This conduct must be evaluated to determine whether it is so serious that he should be required, in the interests of this country, to depart. Furthermore such conduct will assist in determining the likelihood of recidivism and whether the appellant, if permitted to remain, will be a satisfactory citizen of this country. Thus the Tribunal must investigate, inter alia, the facts concerning the appellant’s criminal behaviour, not for the purpose of reviewing the conviction but to evaluate his conduct.

120    As matters stood following Daniele and Degerli, the correct approach to the issue of going behind a conviction was as follows:

(1)    The error was an orthodox error in the category of taking into account an irrelevant consideration, such irrelevant considerations including:

(a)    the form of the indictment;

(b)    the course of the trial and the fairness of the trial procedures;

(c)    the correctness of the summing up;

(d)    the propriety and consistency of the verdict and penalty; and

(e)    “the correctness of the conviction” (or “reviewing the conviction”).

(2)    It is a relevant (and mandatory) consideration to consider the conduct of the convicted person and their criminal behaviour.

121    It was in the apparent tension between (1)(e) and (2) that issues later emerged. But it is helpful to reconcile that apparent tension before proceeding further.

122    On the one hand, “whether the conviction is correct” is irrelevant. On the other, “whether the crime was committed (and, if so, how or in what degree)”, is relevant, because it goes to, inter alia, the danger posed to the community by the convicted person. Of course, the answer to the latter question might often suggest (or necessitate) an answer to the former. But it is then a matter of how the inquiry is approached.

123    If, because it is relevant to (for example) whether a risk is posed to the community, the Tribunal receives evidence demonstrating that the crime was not committed, that is a relevant consideration. If, alternatively, the Tribunal receives evidence of the transcript of the summing up and takes it into account in finding that the person should not have been convicted, that is an irrelevant consideration. Why? Because the latter does not go to whether the person should be deported. An incorrect summing up does not tend to prove either way that the person should remain in the community or be deported from it — it does not even tend to prove that they are guilty or innocent of the crime for which they have been convicted. But, on the other hand, if evidence goes to the actual criminal conduct (including if it proves that it did not occur or that it occurred in a different way), then it logically affects the question of whether the person should be deported.

124    So, if a tribunal hears evidence that conclusively proves that the crime was not committed, that is relevant. But it should stop there. It is not relevant to go on and consider or decide that the conviction must therefore be “incorrect”: it is not relevant because it does not matter. It does not matter because the conviction (at least under the earlier provisions) was the jurisdictional fact enlivening the decision-making power, so was either present or absent regardless of the Tribunal’s view, and is not part of and comes before the (then) discretionary choice to be made by the Tribunal (or Minister).

125    When understood in that way, the position in Daniele and Degerli was orthodox and logical. It did not depend on an (apparently) sui generis “rule” of administrative law that gives some special significance to criminal processes that is not found elsewhere and has no basis in the legislation.

The inflection point

126    The inflection point came in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441, where the Full Court again considered the issue. Judgment was first reserved prior to the hearing and determination of Daniele, with a further hearing occurring five days after the delivery of judgment in Daniele and one day prior to the delivery of judgment in Degerli, although it appears that at that further hearing the parties were invited to make submissions upon both the earlier and later case: see 449.

127    Fisher J, having twice considered the issue, was content to agree with his judicial colleagues, albeit without unconditional endorsement of the reasons (at 450):

I have had the advantage of reading the separate reasons for judgment of Fox and Sheppard JJ. I agree with the conclusion of each of them that this appeal should be allowed and the matter remitted to the Tribunal for hearing and decision. I also agree generally with their reasons.

128    Sheppard J, having set out the facts, summarised (at 465) the basis of the decision in Daniele. His Honour there accurately identified the Tribunal’s error of law in that matter as being incorrect as to the approach to summing up, and the irrelevant consideration of being “overconcerned with the course of the trial”. His Honour then extracted the parts of the reasons in Daniele set out in paragraph [106] above, appending this analysis (at 466):

For present purposes the most significant statement in the judgment of Fisher and Lockhardt [sic] JJ. is that in which they say that they cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. That statement may suggest to some that the Tribunal is entitled to examine facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence — called before the Tribunal but not at the trial — would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, in light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli’s case and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.

129    Having referred to some other authorities raised in argument, his Honour later said of the Tribunal’s approach in the case then at hand (at 468-469):

The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion is was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.

I do not believe that such a conclusion is greatly restrictive of the Tribunal’s difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal’s recommendation.

I would add that a compensating benefit which results from the adoption of the view which I have proposed is that apparent unevenness between the decisions of the criminal courts of this country and those of the Tribunal will be greatly reduced, if not eliminated. I am satisfied that that would be in accordance with the intention of the legislature.

130    Fox J set up the choice before the Court (from 445), and resolved it to reach the same conclusion:

In point of broad policy it can be suggested that one or other of two opposed approaches can be adopted. One is that, there having been a criminal trial in which the respondent was found guilty and sentenced, and that conviction still standing, and being the basis of the power to deport, it should not be open to the Tribunal to reconsider for itself the facts upon which the conviction was based (or question the soundness of the trial procedure), and thus, in effect, contravert [sic] the conviction. The other is that an order of deportation is or can be seriously prejudicial to the person concerned (and his family), and a Tribunal charged with considering whether or not to support it should be free to consider the conduct of that person, including conduct referable to the charge made against him, and should be free also to see that the conviction can be supported. Advocates of each approach would probably concede some validity in the other.

The conviction, including the sentence of a year or more, is of course a necessary basis for the Minister’s order. If it can be shown that there is absent any of the necessary ingredients (more fully and precisely stated in s. 12), any order made by the Minister or affirmation thereof by the Tribunal will be quashed or set aside. What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge), should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury.

The matter may be tested in another way and from a different direction by asking what the position would be if a prosecution witness obviously important to the conviction were to tell the Tribunal on oath that he had in his evidence at the trial committed perjury on vital matters. I do not see why the Tribunal should not receive his later account as part of the material before it, and I would not suggest that its proceedings could or should be arrested by a curial order simply because it did so, or threatened to do so. If the view I have expressed is correct, it would then be confronted by a conclusive finding of guilt, and evidence strongly suggestive that the conviction could not stand or would, in the face of the later evidence and its reflection on the credibility of the witness, be quashed as unsatisfactory. These matters are, however, for the criminal law and its procedures. The review might of course take place many years after the conviction, but the convicted person would have the same rights and remedies as an Australian citizen not liable to deportation. In the circumstances suggested, the Tribunal would not, despite the later evidence, be obliged (if the facts otherwise warranted it) to affirm the decision. In accordance with the terms of cl. 22 (3) of the Schedule to the Administrative Appeals Tribunal Act (now s. 66E (3) of the Migration Act) the matter could be remitted for reconsideration by the Minister with or without a recommendation arising from or related to the evidence of the self-confessed perjurer. There could be a recommendation that the order for deportation be revoked until the position was clarified, on the basis that, if appropriate, the Minister could issue another. There is considerable flexibility. What would be wrong, in my view, would be to recommend revocation influenced by a conclusion that the person concerned should not have been convicted.

131    When the principle is “tested” by his Honour in that last paragraph (at 446), the danger might be thought revealed. His Honour confronts the case of serious and obvious doubts about a conviction, but says “the Tribunal would not, despite the later [exculpatory] evidence, be obliged (if the facts otherwise warranted it) to affirm the decision.” The solution proposed is (as proposed in a modified form by the Minister’s oral submissions in the present case) that “[t]here could be a recommendation that the order for deportation be revoked until the position was clarified”. But then, one sentence later: “What would be wrong, in my view, would be to recommend revocation influenced by a conclusion that the person concerned should not have been convicted.”

132    How the Tribunal might simultaneously not receive or consider evidence going to — or “reconsider for itself” — the facts behind a conviction, but also decide to propose to revoke (however temporarily) the deportation order remains unanswered. It would seem that is because it is unanswerable.

A new chapter

133    After amendments including the Migration Reform Act 1992 (Cth) and renumbering under the Migration Legislation Amendment Act 1994 (Cth), ss 200 and 201 of the Act provided:

200 Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

… and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

134    In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Court considered whether the Tribunal could “impugn” the conviction or sentence on which a deportation order is based under the Act as it then stood. The Court said:

[25]    It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.

…

[40]     … where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. …

[41]    There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.

135    The reasons seem (at [45]) to ground the “principle” in public policy and Parliament’s intention (that is to say, necessarily, as expressed in the Act or the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)):

To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. …

136    It seems to be shaky ground. There is no necessary basis to reason that, because the Parliament gave the Tribunal very wide scope in conducting its review of decisions, it must have intended that the scope in this very specific respect would be extremely narrow.

Consideration

137    As the above analysis reveals, the principle said to arise from Daniele was actually first expounded in Gungor. With respect, it can be seen that the judgments in Gungor relied upon a misapprehension of the approach taken in Daniele, even in light of the subtle shift closer in Degerli. SRT followed the approach in Gungor, expanded to also extend to the facts underlying a sentence.

138    This Court is thus faced with inconsistent earlier Full Court decisions. The more recent decisions rely upon the earlier, although that reliance is most probably misplaced. It falls to this Court to consider the correct approach to the principles in question, in light of the Act in question. The issue was squarely raised and helpfully addressed by counsel on both sides, including the provision of further submissions.

139    (In strict terms, it is may be accepted that the ratio in Daniele does not extend to contradicting that in Gungor, as the question on which inconsistent answers arise was not strictly necessary to address in Daniele. In that sense, Gungor and the later cases might be said to be the only source of authority to follow. However, Gungor’s reliance on an incorrect interpretation of the authority in Daniele — that was inconsistent with the obiter emphasised in the extract at paragraph [111] above — leaves the state of the reasoning in Gungor at least confused. This difficult question of precedent is discussed further below.)

The rationale for the principle in general

140    Where justification has been offered for the principle, it appears to arise from “public policy” considerations. These seem to run along two lines:

(a)    it is undesirable for “unevenness” (Gungor at 469) between or the “substituting” (Gungor at 446) of a tribunal’s decision and that reached by the criminal courts, with the effect of “going behind” or “setting at nought” the conviction (or sentence); and

(b)    the evidence and procedure before the Tribunal would not be of the same high standard as that before the jury and sentencing judge.

(See also a similar exposition of the motivating policy concerns in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at 325 [43] per Branson J.)

141    These considerations seem to coalesce into an “understanding” of (Gungor at 446) or satisfaction that the principle “would be in accordance with” (Gungor at 469) the intention of the legislature, or at least that the contrary intention is “improbable” (SRT at [45]).

142    The implied restriction (for it is not explicit in any Act) on the lawful conduct of the review is said to follow from those policy considerations based on the role and characteristics of the Tribunal. However, it must be kept in mind that the Act does not primarily provide for a decision of the Tribunal. It provides for a decision of the Minister: s 501CA(4). In reviewing that decision, the Tribunal has all the powers of the Minister: s 43(1) of the AAT Act. So, to infer that the Parliament intended that the Tribunal be restricted as in Gungor requires an (hitherto unstated) additional inferential step: either that the Parliament intended a Minister of the Crown to be so restricted, or that s 43(1) of the AAT Act is to be read down in some way.

143    The justification for the principle said to arise from Daniele is bad in law.

144    First, while “public policy” may inform the development of the common law of Australia (and elsewhere: see for example PH Winfield, “Public Policy in the English Common Law” (1928) 42 Harvard Law Review 76 and the references therein), it need not necessarily inform the construction of legislation in the same way. The primary “policy” to be adopted in the interpretation of legislation is that emerging (expressly or impliedly) from the enactment itself: see eg s 15AA of the Acts Interpretation Act 1901 (Cth).

145    In Ali, Branson J recognised (at 324 [37]-[38]) that the earlier cases had “identified as a policy consideration the undesirability of administrative decisions being based on considerations inconsistent with criminal convictions and sentences”, although her Honour noted that some of the reasons for that undesirability “extend beyond” the “desirability of maintaining public respect and confidence” in criminal justice (emphasis added).

146    In Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 (AEU v Department of Education), French CJ, Hayne, Kiefel and Bell JJ expressed the necessary caution (at [28]-[29]):

The reasoning in the IRC was informed by the view that it was desirable that the Minister have flexibility in the appointment of teachers and that Pt III of the Act might be “unnecessarily prescriptive” in its application to the ad hoc appointments of relief teachers in diverse circumstances. This approach, with respect, emphasised a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case was to be derived from a consideration of the scheme of the Act as a whole, the respective functions of Pts II and III of the Act, and the regulatory requirements of Pt IV of the Act.

The Full Court of the Supreme Court, like the IRC, emphasised what their Honours considered to be the benefits flowing from the Minister’s construction of s 9(4). Those benefits, expressed in terms of flexibility, were elevated to a statutory purpose. That purpose lacked a foundation in the text of the Act.

(footnotes omitted, emphasis added)

147    Second, it is not clear that the “public policy” involved here is consistent with the policy of the legislation in question. Generally speaking, the AAT Act provides for a flexible and unencumbered approach to reviewing decisions: see ss 2A, 25(4A), 33(1), 43(1). Specifically here, the decision is reviewable by the Tribunal under s 500(1)(ba) of the Act, subject to the various procedural modifications in subss (6A)-(6L) of that section. As such, the review proceeds under the sections of the AAT Act just referred to, rather than the schemes in Parts 5 and 7 of the Act: see also s 501CA(7) of the Act. Thus the following legislative statements are relevant:

(a)    “The Tribunal may determine the scope of the review”: s 25(4A) of the AAT Act;

(b)    “the procedure of the Tribunal is, subject to … any other enactment, within the discretion of the Tribunal”: s 33(1)(a); and

(c)    “the Tribunal … may inform itself on any matter in such manner as it thinks appropriate”: s 33(1)(c).

(Although only narrow extracts are set out here for brevity, the provisions should be read in their full context.)

148    The AAT Act reveals that inflexibility and rigidity are to be avoided. That weighs strongly against a construction of the Acts which imposes a strict rule regarding the evidence and factual matters to be decided by the Tribunal (and the Minister). Even if the principle was said to arise other than by means of statutory construction, a general concept of finality in administrative decision making has so far been eschewed (see eg Commonwealth v Snell (2019) 370 ALR 1 at 15 [51]; see also Daniele at 359-360).

149    Third, the principle in question can be seen to diminish the ability of the Tribunal (and the Minister) to make good decisions. Although some legislative indication might be pointed to in an attempt to support the principle, including promoting “public trust and confidence” in the Tribunal (s 2A(d) of the AAT Act), that depends upon whether the imposition of the principle will actually achieve that policy object. But consider a few scenarios:

(a)    The convicted murderer of a well-known identity has their visa cancelled and the cancellation is not revoked by the Minister. The body was never found. The victim of the murder appears at the Tribunal to give evidence that in fact they are alive. Gungor would have the Tribunal close its eyes and cover its ears to the actuality before it.

(b)    To take a less extreme hypothesis, consider the scenario posed by Fox J in Gungor at 446:

The matter may be tested in another way and from a different direction by asking what the position would be if a prosecution witness obviously important to the conviction were to tell the Tribunal on oath that he had in his evidence at the trial committed perjury on vital matters.

His Honour’s answer to that dilemma relied on a recommendation to the Minister to delay matters until the relevant criminal law processes could be followed. That course is no longer available (see eg s 500(6L) of the Act), even if such an approach to administrative decision-making were desirable. In any case, it is no answer to the general application of the principle (see also above paragraphs [130] to [132]).

(c)    Or consider where a person from Palestine was convicted by an Israeli military court on a plea of guilty on the basis of legal advice, to avoid a lengthy sentence in prison, where acquittal in the circumstances seemed unlikely despite professed innocence: Trikilis and Minister for Immigration and Border Protection [2017] AATA 1409. In that case, there was evidence of the political and social issues explaining the choice to plead guilty. The Deputy President of the Tribunal refused (at [53]) to “ignore the circumstances in which the convictions took place”, saying that “to do so would be to proceed on a premise which I am satisfied, on the balance of probabilities, is false.”

150    In all of these cases, of course the conviction (or any fact found on sentence) is extremely powerful evidence of the facts underlying it. That evidence should not be “set at nought”. The criminal court has all the Crown witnesses and submissions and (necessarily) makes its decision closer to the time of the events. Individuals may have motives to later provide a different, untrue account to the Tribunal. The Tribunal should exercise extreme caution before considering itself better placed than the criminal courts to consider aspects of crime or the criminal law. The Tribunal, where there is no compelling reason to engage in lengthy evidence in relation to the facts underlying the conviction, may appropriately limit the scope of its inquiry: ss 25(4A) and 33(1)(a) of the AAT Act. And of course the fact of a conviction as a stigma on a person’s continued membership of the community (having been adjudged guilty by fellow members of that community) may stand independently as a reason not to revoke a visa cancellation (or at least to refuse to exercise any discretion enlivened by the attainment of the relevant satisfaction), despite potential issues with the facts underlying a conviction.

151    But none of that provides a rationale for a strict rule to prevent the Tribunal considering facts underlying a conviction that has no basis in the text of the AAT Act. And it would not promote “public trust and confidence” in the Tribunal for it to proceed on factual bases that are obviously false.

152    The Tribunal stands in the shoes of the decision-maker: s 43(1) of the AAT Act. But, so shod, Gungor would then have it fettered. It is not merely “improbable” that is what the legislature intended: it is expressly contrary to the AAT Act.

153    Further, although in a different context, certain statements of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 might be thought to suggest there is no general aversion to administrative bodies deciding matters relating to the criminal law. For example, at 371 [33]:

More generally … it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.

154    And later at 376 [49], referring to General Medical Council v Spackman [1943] AC 627 (which is discussed later in these reasons):

Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.

Cause to pause

155    The above doubts in relation to the principle said to have emerged from Daniele face an important difficulty: the prevailing view in the Full Court has been to the contrary since Gungor. In Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 475 [17], Black CJ, Sundberg, Katz and Hely JJ said that:

We should observe at this point, that the principled, consistent and predictable development of the law ordinarily requires that in those infrequent and exceptional cases in which it can be said that departure from previous authority is warranted on the ground that it is clearly or plainly wrong (see Nguyen v Nguyen (1990) 169 CLR 245 at 269 and Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560; 168 ALR 687 at 693-694), the question whether such a departure is warranted in accordance with the principles permitting it should be directly and specifically addressed.

156    There is, on one view, particular care to be taken where the previous cases relate to the interpretation of a statute: Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at 602-603 [27]-[28]. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 222 [8], Moore J said as follows:

This Full Court is bound to follow [the earlier case] unless it is convinced it should not. The level of conviction required of the Full Court has been variously described as being satisfied that the earlier judgment is plainly wrong, manifestly wrong or clearly erroneous. Other formulations have been adopted… However formulated, the duty of any later Full Court to follow an earlier Full Court is founded on public policy considerations and, in particular, the need for consistency in the application of federal laws in this Court, subject always to correction of any error by the High Court or the amendment of the law by Parliament.

(For a general discussion of the approach to questions of this nature, see also R Creyke et al, Laying Down the Law, LexisNexis Butterworths (2018, 10th ed), [7.14]ff.)

157    Although there are reasons (expressed above) to doubt the turn in the line of authority taken in Gungor, including the shift from Daniele identified above, the countervailing statutory provisions noted, and the High Court’s authoritative warning in AEU v Department of Education, it is not ultimately necessary to overrule the earlier line of authority to dispose of this appeal, because Parliament has amended the law. Where the rule derived from that line of authority is tied (elusive though that tie might be) to the “foundation” or “genesis” of the power, and the preconditions to the power have been substantially modified here, it is suitable to instead dispose of the appeal on the basis of the provision as it now stands, as follows.

The principle and s 501CA(4)

158    Even if the principle said to have emerged from Daniele is part of the general administrative law, there is the further question of whether it applies to the specific review in question.

159    The presently relevant regime is found in ss 501 and 501CA of the Act. In Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 352-353 [70]-[74], Gageler and Gordon JJ succinctly summarised the provisions in question here:

The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. To advance that object, the Act “provides for visas permitting non-citizens to enter or remain in Australia” and states that the Parliament intends that the Act “be the only source of the right of non-citizens to so enter or remain”. The Act also “provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by [the] Act”.

Section 501 contains powers to refuse or cancel a visa on character grounds. Sub-sections (1), (2) and (3) identify circumstances in which the Minister may refuse to grant a visa to a person or may cancel a visa that has been granted to a person. The operation of each sub-section depends on the Minister forming an opinion or state of satisfaction about whether the person passes the statutory “character test”.

Section 501(3A) is in different terms. It relevantly provides that the Minister must cancel a person’s visa 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) …; 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.”

The sub-section imposes an obligation on the Minister to cancel a visa whenever its terms are met. If the pre-conditions to the exercise of the power exist, the Minister does not have a discretion to decide not to consider exercising the power in s 501(3A).

The circumstances in which a person does not pass the character test are set out in s 501(6). Section 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record”, as defined by s 501(7). Relevantly, s 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

A decision to cancel a visa pursuant to s 501(3A) may be revoked under s 501CA. As soon as practicable after making a decision to cancel a person’s visa, the Minister must give the person notice of the cancellation decision and particulars of the information on which the decision was based, and invite the person to make representations to the Minister about revocation of the cancellation decision. If the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked, the Minister may revoke the cancellation decision.

(footnotes omitted, emphasis in original)

160    Section 501CA(4) provides as follows:

The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

161    As has been noted, it can be seen that the justification for the principle said to have emerged from Daniele is that the restriction on the decision-maker flows by implication from the statute. However, the statute has significantly changed since the decisions in Daniele, Degerli, Gungor and SRT.

162    First, the conviction (or sentence) is no longer the direct genesis or foundation of the decision under review. The reviewed decision is whether to revoke the cancellation decision. A (subjective) jurisdictional fact of the (non-reviewable) cancellation decision is the Minister’s state of satisfaction as to the conviction (or sentence). However, the only jurisdictional facts underlying the revocation decision are that a cancellation decision and representations to the Minister have been made. While a principle tied to the (somewhat elusive) “genesis” or “foundation” of a decision-making power might extend its reach beyond strict jurisdictional facts, it is here twice removed from that source: by the state of satisfaction and the two-stage decision. (The elusiveness of the notion of a “genesis” of a decision — vis-à-vis the somewhat clearer notion of a jurisdictional fact — might cast more doubt on the soundness of the proposition it is said to ground.)

163    Second, here the scheme of the Act invites direct challenge to the “genesis” of the cancellation decision: subs 501CA(4)(b)(i) expressly contemplates the Minister (in his revocation decision) revoking the cancellation decision on a ground which requires a directly contrary state of satisfaction to that which is the “genesis” of the cancellation decision. If the principle is grounded in the basis of the power, the statute directly rejects it by allowing challenge to the basis of the power.

164    Third, the Act opens a deliberately broad enquiry by the decision-maker under subs 501CA(4)(b)(ii), unlike the previous ss 12 and 200. To that extent, it would be “improbable” that the legislature intended to trammel the discretion in that way.

165    Fourth, the right to reside in a nation is an important one, as is the necessity for proper administrative review. If the Parliament wanted to restrict its application or curtail an avenue of review, it would say so. In this Act, it has never been afraid to do exactly that. The Act provides comprehensive regimes for all aspects of administrative review. Notably, in that context, it omits any suggestion of the principle said to have emerged from Daniele.

166    If there is to be some general principle of finality in administrative law — and there are good reasons not to so restrict decision-making — then it is for the Parliament to provide it or a court higher than this to find it. Until such a time, this Court and others are bound to apply the usual principles of administrative law and statutory interpretation.

167    That said, nothing in these reasons should be taken as an encouragement for administrative decision-makers (including the Tribunal) to disregard the long-standing and sensibly placed faith and confidence in the criminal processes of courts in this nation, and approach each matter as their own independent review of convictions and sentences. That is not the role for which Parliament has provided. Due respect and evidentiary weight should be placed on the serious and important decisions of those courts which are made upon the satisfaction of a high standard of proof. In this latter respect I have had the advantage of reading in draft the careful and thoughtful reasons of McKerracher and Colvin JJ. Their Honours’ salutary warnings that administrative tribunals ought not too readily gainsay the outcome of the criminal justice process are admonitions which must not be ignored.

A note on General Medical Council v Spackman

168    For completeness, it is relevant to briefly comment on the references in some of the earlier cases to the decision of the House of Lords in General Medical Council v Spackman [1948] AC 627.

169    The leading speech was delivered by Viscount Simon LC, with whom all other members of the panel agreed. The provision in question was s 29 of the Medical Act 1858 — on the terms of which (at 634) “the whole question turns” in that case:

If any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanour, or in Scotland of any crime or offence, or shall after due inquiry be judged by the General Council to have been guilty of infamous conduct in any professional respect, the General Council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register.”

170    The Lord Chancellor also refers by contrast to s 1 of the Clergy Discipline Act 1892, which for convenient reference is set out as enacted below:

1— Effect of conviction of clergyman for treason, felony or grave misdemeanours, or for certain other offences.

(1)    If either—

(a)    a clergyman is convicted of treason or felony, or is convicted on indictment of a misdemeanour, and on any such conviction is sentenced to imprisonment with hard labour or any greater punishment, or

…

(c)    a clergyman is found in a divorce or matrimonial cause to have committed adultery, or

…

then, after the date at which the conviction, order, or finding becomes conclusive, the preferment (if any) held by him shall, within twenty-one days, without further trial be declared by the bishop to be vacant …

171    Following that contrast, the construction of s 29 of the Medical Act 1858 was as follows (at 634-635):

That section draws a significant distinction between a case in which the impeached practitioner has been convicted of felony or misdemeanour and a case in which the allegation of infamous conduct is not connected with a criminal conviction. In the former case, the decision of the council is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted. In the latter case, the decision of the council, if adverse to the practitioner, must be arrived at “after due inquiry,” and this of course means after due inquiry by the council.

172    That construction was not informed by “public policy”, but merely the words of the enactment.

173    At 635, the Lord Chancellor said:

Unless Parliament otherwise enacts, the duty of considering the defence of a party accused, before pronouncing the accused to be rightly adjudged guilty, rests on any tribunal, whether strictly judicial or not, which is given the duty of investigating his behaviour and taking disciplinary action against him.

174    And further, at 637:

If it was considered desirable to make the decision of the Divorce Court conclusive, and so to prevent the possibility of a second hearing on the issue of adultery, this could only be brought about by amending s. 29.

175    Spackman is authority for the particular construction of s 29 of the Medical Act 1858, in light of the contrasting path of inquiry there provided. But it is also authority for the proposition that the task to be undertaken by a tribunal is that provided for in the statute.

176    In the present case, the statutes provide for a broad and unconstrained inquiry which includes a direct challenge to the foundational “satisfaction” of the Minister: s 501CA(4)(b)(i).

Conclusion on the first and second grounds

177    It follows from the above reasons that the Tribunal acted on a wrong principle, being that it could not examine the facts upon which the conviction was based and could not receive evidence inconsistent with or which contradicted evidence relied upon by the criminal court when arriving at the conviction and sentence. Refusal to consider the evidence advanced, including that evidence about the circumstances surrounding the offending, could realistically have resulted in a different outcome, had the Tribunal adopted the correct approach to the question. The primary judge erred in failing to so find. The appeal must be allowed on the first and second grounds.

The third ground

178    In light of the result on the first two grounds, it is not necessary to deal with the third ground of appeal, to whatever extent it was pressed if at all.

Associate:    

Dated:    21 November 2019

REASONS FOR JUDGMENT

COLVIN J:

179    I have the considerable advantage of reading a draft of the reasons to be published by McKerracher J. For the reasons given by McKerracher J, with which I agree, ground 1 is not made out. I add some observations concerning the principles to be applied in cases where a party seeks to advance a factual position before an administrative decision-maker that is contrary to the necessary factual foundation upon which a conviction or custodial sentence is based.

180    The procedure that must be followed in criminal proceedings requires a high standard of proof after a clear statement of the nature of the charges brought against an accused person. There are many protections for the accused in the criminal trial process. Therefore, a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for a criminal conviction or the imposition of a sentence. It follows that it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.

181    In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others). The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. Other statutory powers may require the fact of the conviction or sentence to be accepted and given effect in the course of the decision-making process.

182    In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view. Usually, the legislative context will also require the further conclusion that the decision-maker is not entrusted with power to contradict the necessary factual basis for the conviction or the sentence. However, the extent to which the foundation for the power constrains the fact finding process of the decision-maker will depend upon a proper consideration of the legislative provision in each case.

183    In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision-maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision-maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.

184    In applying these principles, it is important to bear in mind that an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court. So, using the present circumstances as an example, the High Court has cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making by the Administrative Appeals Tribunal under the Migration Act 1958 (Cth): Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [24]. In the Tribunal, evidence is simply the material before the Tribunal, however received. Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282. Therefore, subject to compliance with requirements of procedural fairness, a specialist tribunal may contemplate the application of its own expert knowledge in reaching a conclusion. However, that material or resource must still be weighed with other evidence in reaching the required conclusions: Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457 at 480-481.

185    Facts can be fairly found by administrative decision-makers without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 at 395-396. The fact that material may be inadmissible according to the laws of evidence does not mean that it cannot be received by an administrative tribunal. It is relevance that determines whether the material is to be considered: Casey v Repatriation Commission [1995] FCA 847; (1995) 60 FCR 510 at 514.

186    Nevertheless, in any decision-making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision-maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, his Honour captured its essence by saying 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained'. If there is no conviction and a party makes a claim that a crime has been committed by another then due 'weight is to be given to the presumption of innocence and exactness of proof is expected'. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.

187    Further, in order to establish a particular fact even in the absence of contradictory evidence, the mode of proof must be sufficient to persuade a reasonable person to that conclusion. In the context of a court decision, this is recognised by the principle that the evidential burden is not discharged unless there is evidence of a kind that, if uncontradicted, would justify persons of ordinary reason and fairness in affirming the proposition maintained by the proponent: Wentworth v Rogers [1984] 2 NSWLR 422 at 436.

188    So, in forming a view as to whether particular material demonstrates a particular factual matter, regard is had to the nature and form of the evidence received, the degree of its inherent veracity (or lack thereof), the other forms of persuasive material that might be available to be presented as to the same facts and any reason why that material is not presented. Within any such fact-finding process, proof of a conviction and sentence carries great weight, not just in proving the fact of the conviction and the nature of the sentence, but also in proving the necessary factual foundation for those matters.

189    The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts.

190    These matters explain why Branson J, after distinguishing a case where such matters were jurisdictional, said that a conviction and sentence were to be treated as strong prima facie evidence of the facts upon which they are necessarily based and throw a heavy onus on the person seeking to challenge those facts as to why they should not be accepted: Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at [43]. It was not to say that there was any different ultimate burden that applies in such cases or that there is some policy consideration that gives a special character to findings that must be taken to underpin a criminal conviction and sentence, but rather to say that the compelling nature of such findings gives them a quality that will be difficult to contradict. The same principles also explain the rare instances such as Minister for Home Affairs v Sharma [2019] FCA 597 where there is a factual finding in the context of administrative decision-making that contradicts the basis for a criminal conviction or sentence.

191    However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose. In this case such questions do not arise because, for the reasons given by McKerracher J, the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke.

192    The legislated process applicable in this case begins with a legislative direction to the Minister to cancel a visa based upon the occurrence of particular types of convictions and sentences. It is the character and seriousness of those convictions and sentences that condition the statutory requirement to cancel the visa. The legislature acts upon the confidence that can be entrusted in the criminal process by which the convictions and sentences might arise and gives them a particular consequence, namely cancellation of a visa. Further, the structure of s 501CA(4)(b) reinforces that conclusion because the ameliorating or qualifying power to revoke the cancellation does not confer authority to question the factual basis for the convictions and sentences. It confers a power to revoke if the decision-maker is satisfied that one of two limbs is met.

193    The first limb is that the person passes the character test. The character test enumerates a number of matters each of which mean that a person does not pass the test. Many of those depend upon a person having been convicted of an offence or having received a particular sentence for a criminal offence. None of those provisions invites an inquiry as to whether the conviction or sentence was properly imposed or the truth or otherwise of the facts upon which they were based. The required state of satisfaction is as to the fact of the specified conviction or sentence. Other parts of the character test enumerate matters that require an evaluative judgment to be formed. They each concern matters of criminal behaviour or a risk to security. Therefore, where the question is whether a person fails to pass the character test by reason of a conviction and sentence, the first limb does not invite an inquiry as to whether the conviction or sentence was properly imposed or properly supported by the facts.

194    The second limb is 'another reason why the original decision should be revoked'. The use of the words 'another reason' directs attention to any topic other than the matters that mean the person does not satisfy the character test. They assume that the decision-maker has not been satisfied of the first thing (namely, that the person passes the character test). The focus upon 'another reason' means that the consideration is to be undertaken on the basis that the person does not pass the character test. If the failure to satisfy that test is due to a criminal conviction or sentence then it assumes that there is confidence to be reposed in the fact of the conviction or sentence (and the facts upon which it was based). The decision-maker considering whether there is 'another reason' under s 501CA(4)(b)(ii) must accept that the person has been convicted or sentenced in a manner that means they do not pass the character test. They are not authorised to go behind that aspect. It is not 'another reason' if the reason is to refute the first limb. Such an approach would undermine the first limb and allow a person to claim that the visa cancellation should be revoked because the factual matters that necessarily underpin the conviction or sentence are not true. The other reason would become no more than a challenge to the approach to the subject matter of first limb that the legislature requires the decision-maker to adopt.

195    In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.

196    The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was 'another reason' to revoke the decision under s 501(3A) to cancel the appellant's visa. The Tribunal was correct in that view.

197    As to ground 2, to the extent that is based upon a claim that the Tribunal could have gone behind the factual matters underpinning the conviction and sentence of the appellant, it follows from the reasons concerning ground 1 that the ground must fail. Otherwise, as noted by McKerracher J, the argument advanced by the appellant depended upon two propositions:

(1)    The appellant gave evidence that went well beyond the essential facts underpinning the conviction and sentence; and

(2)    The Tribunal failed to make findings about those matters, because it believed that it had no power to do so.

198    The appellant submitted that there were three matters about which the Tribunal failed to make findings, namely:

(1)    The appellant's contention that the offences were committed in the context of a Sri Lankan faction dispute in which he became involved while trying to support his friends;

(2)    The appellant's lack of communication skills and difficulty integrating into Australian society played a significant factor in him committing the offence as he did not understand the serious consequences of his actions at the time; and

(3)    There was a fight between quarrelling factions in the house where the offending took place.

199    The Tribunal set out the sentencing remarks of the magistrate in its reasons (para 41). Relevantly for present purposes, they included the following:

There is clear evidence that, so far as [MT] was concerned, the first blow, being a blow to the back of the head, was struck by [HZCP] with the bar from the gymnasium equipment.

It does seem to me to be clear on the evidence that it was [HZCP] who wielded that piece of gymnasium equipment as a weapon …

There is no evidence that either of the complainants said or did anything which might have provoked the attack upon them. There is evidence to the effect that all four men went to the house on that afternoon with the specific intent of inflicting harm on [MT].

…

It does appear that [NS] was struck to take him out of the action, so to speak. What was not clear during the trial, and remains unclear to the present time, is the motivation of those involved in these attacks.

…

Beyond those circumstances to which I've just referred, there doesn't appear to be any obvious cause or factor giving rise to the events of the late afternoon of [the day of the offending].

200    The first and third matters about which the appellant says the Tribunal failed to make findings are matters that sought to contradict the findings on which the appellant was sentenced, namely that it was unclear what the motivation was for the attack and there was no obvious cause or factor giving rise to the events on the day of the attack. The matters identified by the appellant sought to provide evidence of motivation or reasons for the attack. The appellant was sentenced on the basis that there was no evidence of these matters. In context, this is a finding that there was no explanation for the attack that might diminish or mitigate the circumstances in a manner that might bear upon the appropriate sentence to be imposed. Therefore, once the Tribunal concluded (correctly) that it could not go behind those findings it could not provide a different factual foundation by reaching conclusions to the effect that there was a motivation or context that should be brought to account. They were not matters that went well beyond the findings of the magistrate when sentencing.

201    As to the second matter, the Tribunal quoted (para 44) the written submissions to the Tribunal that included that matter (para 47 of the submissions). The Tribunal then addressed that part of the submissions at para 49 of its reasons. It said:

The Tribunal accepts that HZCP suffered unimaginable horrors as a young man in Sri Lanka. His past haunts him to this day, as it would anyone who lived through what he lived through as a child. This was recognised by the sentencing judge. Despite this, however, HZCP was sentenced to a term of imprisonment and ultimately spent a lengthy period of time in prison. This is despite his background, his relative young age and the fact that he had few criminal offences at the time. This says much about the nature of the violent offences and the seriousness of HZCP's offending. No penalty but one of immediate imprisonment was deemed appropriate by a highly respected judge. Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of HZCP's protection visa.

202    Therefore, it is not the case that the Tribunal failed to make findings as to that matter. As a result, no issue of materiality arises.

203    It follows that there was no error by the primary judge as to the claim of jurisdictional error by the Tribunal based on the matters raised by ground 2 and therefore that ground has not been made out.

204    For those reasons, I agree with McKerracher J that the appeal must be dismissed with costs.

Associate:

Dated:    21 November 2019