Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

3.    Pursuant to r 4.19 of the Federal Court Rules 2011, the costs payable pursuant to order 2 be paid direct to the first respondent’s pro bono counsel.

4.    The first respondent’s counsel have leave to apply to the Court to have costs paid in a fixed amount.

THE COURT DECLARES THAT:

5.    On its proper construction s 501(7)(c) of the Migration Act 1958 (Cth), applies to a sentence to a term of imprisonment, whether imposed by an Australian or a foreign court.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application by the Minister for constitutional writ relief from a decision of the Administrative Appeals Tribunal given on 20 August 2021. On 15 October 2021, the Chief Justice directed, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), that the original jurisdiction in this matter be exercised by a Full Court.

2    Celon Cathcart, a citizen of the United States, applied for a visitor’s visa, sponsored by his wife, Hana Darnia-Wilson, who is an Australian citizen. A delegate of the Minister refused to grant the visa on character grounds arising from criminal convictions and prison sentences in the United States over 25 years ago. Ms Dania Wilson, in her capacity as sponsor, applied for merits review by the Tribunal. The Tribunal determined that it was satisfied that Mr Cathcart passed the character test and remitted the matter to the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs for further processing. As a result of the decision of the Tribunal, Ms Daria-Wilson is the respondent in this proceeding, despite its underlying subject matter being Mr Cathcart’s application for a visitor’s visa.

3    In arriving at its decision, the Tribunal determined that it did not have to apply statements by the Full Court in Brown v Minister for Immigration, Citizenship (2010) 183 FCR 113 at 139 [93] per Nicholas J, with whom Moore J (at 115 [1]) and Rares J (at 115 [2]) agreed on this issue, and by Kenny J in Markaj v Minister for Immigration and Border Protection [2020] FCA 1511 at [12], that the expression “sentenced to a term of imprisonment”, in the definition of a “substantial criminal record” in s 501(7)(c) of the Migration Act 1958 (Cth) included a sentence of imprisonment imposed by a foreign court. Thus, the Tribunal disregarded a sentence of imprisonment for two years that a court in the United States of America had imposed on Mr Cathcart in 1995.

The relevant legislative provisions

4    The relevant provisions of s 501 of the Migration Act are as follows:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:     Character test is defined by subsection (6).

(2)     The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)     the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

(a)     refuse to grant a visa to a person; or

(b)     cancel a visa that has been granted to a person;

if:

(c)     the Minister reasonably suspects that the person does not pass the character test; and

(d)     the Minister is satisfied that the refusal or cancellation is in the national interest.

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

Character test

(6)     For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

    ...

(c)     having regard to either or both of the following:

(i)     the person’s past and present criminal conduct;

(ii)     the person’s past and present general conduct;

the person is not of good character; or

…

(e)     a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)     found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)     the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)     the crime of genocide;

(ii)     a crime against humanity;

(iii)     a war crime;

(iv)     a crime involving torture or slavery;

(v)     a crime that is otherwise of serious international concern; or

(g)     the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 [(Cth)]); or

(h)     an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

Substantial criminal record

(7)     For the purposes of the character test, a person has a substantial criminal record if:

(a)     the person has been sentenced to death; or

(b)     the person has been sentenced to imprisonment for life; or

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; or

…

Definitions

(12) In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

Note 1:    Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2:    For notification of decisions under subsection (1) or (2), see section 501G.

  Note 3:     For notification of decisions under subsection (3), see section 501C.

(emphasis added)

The delegate’s decision

5    On 2 June 2020, a delegate of the Minister was not satisfied that Mr Cathcart passed the character test because he had a substantial criminal record within the meaning of s 501(6)(a) and (7)(c) of the Act (the delegate’s decision). The delegate found that in 1995 he had been convicted in the United States and sentenced to a term of two years imprisonment. The delegate found that, applying the then provisions of Direction 79 made by the Minister pursuant to s 499 of the Migration Act, Mr Cathcart’s offending was serious, that he posed a low risk of reoffending, but that, if he did, it may result in psychological or physical harm and or financial loss to members of the Australian community. The delegate arrived at that conclusion in circumstances where Mr Cathcart had not given evidence of what he had done to rehabilitate himself from his previous drug use. The delegate concluded that, having weighed all relevant matters, Mr Cathcart represented an unacceptable risk of harm to the Australian community and was not satisfied that the risk of him reoffending was negligible, that there were no sufficient countervailing considerations to warrant the Australian community accepting any level of risk and, accordingly, refused to grant the visa.

The Tribunal’s decision

6    The Tribunal examined the criteria prescribed in a new direction, Direction 90, under s 499 that came into force on 15 April 2021, on the basis that s 501(6)(c) applied to Mr Cathcart because of his criminal conduct in the United States between 1991 and 1995. It also raised with the parties, Ms Darnia-Wilson being unrepresented before it, its own view that s 501(7)(c) might apply only to sentences of imprisonment by an Australian court and, ultimately, decided that s 501(7)(c) did not extend to Mr Cathcart’s sentences of imprisonment in the United States. I will return to the appropriateness of that approach in due course.

7    The Tribunal noted that Mr Cathcart was resident in Turkey at the time of its decision, but his wife is an Australian citizen living in Cairns. The couple married in January 2015 in Indonesia. On 19 June 2017, Mr Cathcart boarded a flight from Indonesia to Australia and filled out the arrival card, indicating that he intended to stay here for 45 days. He truthfully answered the question, “Do you have any criminal convictions?” affirmatively, and, as a consequence, was refused entry at the airport and returned to the United States of America on the following day.

8    In August 2017, Mr Cathcart applied for the visitor visa, sponsored by Ms Darnia-Wilson, which the delegate later refused.

9    The Tribunal considered the mandatory considerations under Direction 90 that were prescribed in evaluating, for the purposes of s 501(6)(c), whether the person to whom a visa could be granted was not of good character on account of past and present criminal or general conduct. The Minister makes no complaint about that evaluation. The Tribunal began examining the nature and severity of the criminal conduct. It noted that Mr Cathcart’s criminal history in the United States occurred during the period 1991 to 1995. The Tribunal was satisfied that, first, he had been convicted of two drug offences in North Dakota in 1995 and sentenced to two years imprisonment, with 18 months suspended, and, secondly, he had been convicted of receiving stolen property in California in 1991 and sentenced to 180 days imprisonment. The Tribunal considered that during the period between 1991 and 1995, the cumulative effect of Mr Cathcart’s repeated offending was considerable. It found that, while Mr Cathcart was a heavy drug user in that period, years earlier, his attitude reflected what it found to be his irresponsibility and immaturity at the time, 25 to 30 years earlier.

10    The Tribunal then turned to the consideration under par 5.1(e) of Direction 90 relating to the conduct of the person since his or her most recent offending. It noted that Mr Cathcart’s offences had occurred between 25 and 30 years before, when he had been using drugs, and his crimes related to that use. It found that had been the limit of his offending. It found that Mr Cathcart had provided several references attesting to his good behaviour and his desire to come to Australia to see whether living here would be a good fit for him and his wife. His wife also gave evidence to the Tribunal. She attested that his character was entirely reformed from his previous criminal history, he was entirely drug free and an inspirational mentor and life coach. She expected him to have a positive influence on her own life and that of her daughter.

11    The Tribunal accepted Mr Cathcart’s evidence that he was not a drug user, and was not likely to engage in, or be associated with, any drug related activity in the future. It found there was no pattern of adverse conduct by him in the previous two decades at all. It found that it could not discount the possibility that Mr Cathcart was simply addicted at the time of his offending. It accepted that he was no longer a user of recreational drugs and had converted to Islam. It noted evidence of a number of references of his having changed his lifestyle and concluded as follows:

[55] I agree with the delegate’s assessment that the prospect of any recidivism is low, and I would say, very low.

FINDING ON THE CHARACTER TEST

[56] While his criminal record in the nineties is undoubtedly a stain on his character, the stain is barely visible at this point in time. The image of the palimpsest comes to mind.

[57] I consider that sufficient time has elapsed that it is not reasonable to make an adverse character assessment based on these charges and convictions which occurred so long ago. In New South Wales offences of this sort are for most purposes expunged after 10 years.

[58] The Applicant has been candid about his past offending and he appears to have [made] a genuine attempt to ‘go straight’.

[59] I am satisfied that his past offending in the nineties is not such as to call his character into question at this time, given the period that has elapsed and the lack of any evidence of subsequent wrongdoing.

[60] I am satisfied that the provisions of subparagraph 501(6)(c)(i) do not apply, and that none of the other grounds for failing the character test apply. Therefore, in accordance with subsection 501(6), the Applicant passes the character test. There is therefore no requirement to consider the discretion to refuse to grant the visa: see Minister for Immigration and Border Protection v Makasa [2021] HCA 1.

(emphasis added)

12    The Tribunal then engaged in explaining why it concluded that s 501(7)(c) had no relevance to foreign sentences of imprisonment. It referred to other provisions of the Act, such as s 5M and the definitions in s 5(1) of serious foreign offence and serious Australian offence. It then noted what Kenny J had stated in Markaj [2020] FCA 1511 at [12]:

There was little, if any, dispute that the applicant did not pass the character test for the purposes of s 501(1) of the Migration Act, since the applicant had been sentenced to a term of imprisonment exceeding 12 months while residing in Italy: see ss 501(6)(a) and (7)(c). It is immaterial that the applicant was convicted and sentenced to imprisonment by an Italian court in respect of offences in Italy. As Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [93]:

Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision.

    (emphasis added)

13    The Tribunal said:

[93] It is apparent that Kenny J relied upon Nicholas J’s dictum without qualification. The learned judge did not refer to the potential limiting effect of the 2014 amendments to the Migration Act. Moreover, neither party raised the matter for consideration. With respect, I do not think that under these circumstances the decision is binding on the Tribunal.

…

[96] I consider that the better view is that the imposition by a foreign court of a sentence of imprisonment of 12 months or more is not, as a matter of law, sufficient to conclusively justify a finding that a person fails the character test by reason of having a substantial criminal record within paragraph 501(7)(c), as subsection 501 [sic] now stands.

[99] A final observation. The delegate declined to exercise the discretion to grant the visa, applying Direction No. 79. The delegate found that the Applicant had a ‘substantial criminal record’ applying subparagraph 501(7)(c)(i). The delegate did not consider paragraph 501(6)(c) as a ground for failing the character test. Given the view that I have taken on the foreign courts issue, it might be said that the correct course is to remit the matter to the Department with a direction for the delegate to consider the matter under paragraph 501(6)(c). The Tribunal did not take this course for the following reasons. The reviewable decision is the refusal to grant the visa. The delegate’s decision that the Applicant failed the character test was a threshold question. The matters considered by the delegate under Direction No. 79 comprehend most of the matters considered in relation to the assessment of character by reference to paragraph 501(6)(c). The Tribunal is required to consider the matter de novo, standing in the shoes of the original decision-maker. It would frustrate the objective of the Administrative Appeals Tribunal Act 1975 (Cth) to provide a mechanism for review that is, amongst other things, economical, informal and quick, to remit the matter for reconsideration under paragraph 501(6)(c).

(emphasis added)

The parties’ submissions

14    In seeking to deal with the Tribunal’s conclusion, the parties engaged in a considerable debate about the principles of statutory construction relating to whether legislation had, or could be given, extraterritorial effect or should be construed as having such an effect. It was common ground that both the Full Court in Brown 183 FCR 113 and Kenny J in Markaj [2020] FCA 1511 had expressed views in obiter dicta that were not necessary for the exercise of their jurisdiction in either matter.

15    The Minister argued that the Tribunal erred in its construction of s 501(7)(c), and counsel for Ms Darnia-Wilson sought to uphold the Tribunal’s decision. However, the Minister also argued that if the Tribunal erred in its construction of s 501(7)(c), that error was material within the principles identified by Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 and that, accordingly, constitutional writ relief should be granted to set the Tribunal’s decision aside and remit the matter for further consideration according to law.

16    Ms Darnia-Wilson argued that the Tribunal’s construction of s 501(7)(c) was correct for multiple reasons. She contended that, first, the provision had an ambiguity, secondly, because of its generality, the object of the Migration Act in s 4(1) and (2) would not be generally determinative of the statutory purpose no matter what construction of s 501(7)(c) the Court arrived at and noted that s 501 provided the Minister with a wide variety of powers addressed to various statutory circumstances that respectively enlivened the exercise of those powers. She contended that the exercise of each relevant power had varying consequences for persons applying for or holding the particular visa that was the subject of an application for grant or consideration for cancellation.

17    Thirdly, she submitted that, applying the principles in s 21(1)(b) of the Acts Interpretation Act 1901 (Cth), in any Act, unless a contrary intention appears, references to localities, jurisdictions and other matters and things should be construed as references to such localities, jurisdictions and other matters and things in and of the Commonwealth in a geographical sense, by force of the definition of the “Commonwealth” in s 2B of that Act.

18    Fourthly, she argued that, in substance, s 501(7)(c) was in the nature of a deeming provision in the sense that once a person fell within its criterion, he or she automatically failed the character test. She contended that it followed that the consequence of giving s 501(7)(c) its natural and ordinary meaning, as applying to any sentence of imprisonment, wherever imposed, would entail that persons such as Mahatma Gandhi or Nelson Mandela could be refused entry into Australia because each of them had been a political prisoner sentenced to a substantial term of imprisonment by a repressive regime.

Consideration – could the Tribunal depart from the Court’s construction of s 501(7)(c)?

19    The Tribunal should have acted on the basis that the Full Court and Kenny J had stated, namely that s 501(7)(c) applied to sentences of imprisonment imposed by a foreign court. Whether or not the Court’s considered reasons in both Brown 183 FCR 113 and Markaj [2020] FCA 1511 that s 501(7)(c) applied to instances of imprisonment imposed by foreign courts were obiter dicta, the Tribunal was not at liberty to depart from their reasoning.

20    It should be emphasised that members of the Executive branch of Government, including the Tribunal and a Minister of State, are not in a position to ignore or refuse to apply the law as stated by a court. It is the function of the judicial branch of Government under ch III of the Constitution to declare what the law is and enforce it: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [39]–[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. As Marshall CJ held in Marbury v Madison 5 US 87 (1 Cranch 137 at 177) (1803):

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rules to particular cases must of necessity, expound and interpret that rule

21    And in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152–153 [43] Gleeson CJ, Gummow, Kirby and Hayne JJ affirmed that the judicature exercises “control over administrative interpretation of legislation”. They said (at 153 [43]), in applying what Marshall CJ had held:

An essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers

22    It is the role of the Executive to apply the law as determined by the Courts. Where both a Full Court and a single judge of this Court had proceeded on the basis of a construction of the legislation, albeit in obiter dicta, ordinarily, an Executive decision maker ought not depart from those decisions, particularly when they are considered judgments. Such conduct in the future by Executive decision-makers, including the Tribunal should not be encouraged.

Consideration – does s 501(7)(c) include a sentence imposed by a foreign court?

23    In my opinion, it is not necessary to consider in substantial detail the arguments advanced by Ms Darnia-Wilson in support of the construction that s 501(7)(c) does not have extraterritorial effect. In DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692, Bell P and Leeming JA (with whom Meagher JA agreed) considered, in learned judgments, the principles as to when legislation will be construed as having extraterritorial operation. Leeming JA summarised his conclusion, with which the President also agreed, as follows (at 732 [157]):

A variety of language has been used, including “central conception”, “central focus”, “statutory springboard” and “hinge”, to which may be added the “central concern” mentioned by Mitchell and Beech JJA in Huntingdale Village Pty Ltd (recs and mgrs apptd) v Corrs Chambers Westgarth (2018) 128 ACSR 168; [2018] WASCA 90 at [167]. The different language describes the same approach. Putting to one side the different considerations applicable to legislation creating an offence, in cases where no express provision has been made connecting the statute to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.

(emphasis added)

24    It is important to bear in mind that the Migration Act, as its long title states, is one “relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”. The scheme of the Act is to provide for the grant or cancellation of visas, pursuant to which, it will be lawful or not for a non-citizen to enter Australia or remain here. It is important that, notwithstanding the Parliament’s predilection for legislative complexity, those administering the provisions of the Act should be able to understand any particular provision in a practical and sensible way.

25    Relevantly, the purpose of s 501 is to create powers for the Minister (and his or her delegates), to grant or cancel visas in particular situations based principally on whether a person passes the character test and, where relevant, other criteria prescribed in the various subsections.

26    The natural and ordinary meaning of the unqualified expression, “sentenced to a term of imprisonment”, as it is used within the definition of a substantial criminal record in s 501(7)(c), describes an objective state of affairs. That unqualified expression contrasts, for example, with the qualified expression of the nature of the sentence on which s 501(3A)(b) operates. The Parliament expressly provided in s 501(3A)(b) that the sentence of imprisonment to which a decision-maker must have regard, in the context of a mandatory cancelation, is one, first, that the person is serving, on a full-time basis, in a custodial institution, and secondly, for an offence against a law of the Commonwealth, a State, or a Territory. However, s 501(3A)(a)(i) prescribes no such qualification of a geographical or jurisdictional nature to a sentence of imprisonment within s 501(7)(a), (b) or (c) as a component of a substantial criminal record. Had the Parliament thought that the location of the sentencing jurisdiction was relevant in identifying the factors actuating the mandatory cancellation of a visa, it would have made a similar qualification in s 501(3A)(a)(i) as in s 501(3A)(b).

27    Indeed, the silence of s 501(3A)(a)(i) as to the geographical location of any jurisdiction in respect of a sentence within the meaning of s 501(7)(a), (b), or (c) also contrasts with the operation of s 501(3A)(a)(ii). The latter provision picks up sexually based offences involving a child within the meaning of s 501(6)(e) by reference to a conviction or a finding of either guilt or the proof of an offence by a court in Australia or a foreign country. The Parliament mandated in s 501(3A)(a)(ii) that where an Australian or foreign court entered a conviction or made a finding of an offence against the visa holder that falls within s 501(6)(e), then regardless of the location of the offending, the Minister must cancel the visa if the person is currently serving a sentence of full time imprisonment for an offence against a law of an Australian jurisdiction. It is unlikely that in this context the Parliament intended that a sentence to which s 501(3A)(a)(i) applies would be confined only to one imposed by an Australian Court.

28    In my opinion, the considerations that Ms Darnia-Wilson urged in support of the unorthodox construction arrived at by the Tribunal do not warrant its artificial construction of the natural and ordinary meaning of the plain English words of s 501(7)(c): Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]–[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

29    While, as Ms Darnia-Wilson’s argument noted, some elements of the character test in s 501(6) are linked to the occurrence of a fact or the person’s presence in Australia, there is no sufficient reason to consider that s 501(7)(c) has any meaning other than its ordinary and natural meaning, namely a sentence of imprisonment per se regardless of its territorial nexus as the Full Court held in Brown 183 FCR at 139 [93], and Kenny J held in Markaj [2020] FCA 1511 at [12].

30    Moreover, if a sentence of imprisonment in s 501(7)(c) were construed as limited to one imposed by a court of an Australian jurisdiction, it may result in a person who had never been to Australia, such as Mr Cathcart, but had been convicted overseas of serious offences, as he has, being in a better position than a visa holder in Australia who had been convicted in Australia and sentenced to a term of imprisonment here who, automatically, would fail the character test under s 501(7)(c), in respect of an offence of the same kind. It is possible that, as Ms Darnia-Wilson argued, a person could be convicted and sentenced in a foreign jurisdiction for an offence that would not be, or be regarded as, a crime here, yet he or she would fail the character test automatically. But that argument ignores the fact that, ordinarily, the decision maker, under s 501, will have a discretion whether or not to refuse to grant or to cancel a visa, notwithstanding the failure of a person to pass the character test. If s 501(7)(c) includes a sentence of a foreign court, there may be rare occasions, as Ms Darnia-Wilson argued, in which the Minister, or more likely a delegate, must cancel a visa under s 501. However, in the event that the Minister was persuaded that such a result was inappropriate, he or she can always permit the person to apply for a grant of another visa. Such theoretical possibilities are not a basis to depart from the natural and ordinary meaning of s 501(7)(c).

31    Accordingly, I am of opinion that the Tribunal erred in failing to find that Mr Cathcart failed the character test because he had a substantial criminal record within the meaning of s 501(6)(a) and (7)(c).

32    That then raises the question whether the Minister is entitled to an order that the Tribunal’s decision should be set aside.

Is the Minister entitled to relief?

33    The Minister argued that the Tribunal had made a material error because there was a realistic possibility of a different outcome had it correctly applied the law and considered Mr Cathcart’s case on the basis that, because he had a substantial criminal record, he failed the character test. Had it done so, the Minister contended the Tribunal would then have needed to have regard to the mandatory relevant considerations dictated by Direction 90 in evaluating whether or not he failed the character test.

34    The Minister relied on what Kerr and Mortimer JJ (with whom Allsop CJ agreed) held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174], namely:

In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]-[68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]-[73].

(emphasis added)

35    The Minister contended that this Court could not find that there was no realistic possibility of a different outcome were the matter to be remitted to the Tribunal. He pointed to the fact that the delegate had come to a different decision to that of the Tribunal which had not considered the factors under Direction 90 that bear on a failure to pass the character test. The Minister submitted that such an assessment was different to the one that the Tribunal made, in respect of s 501(6)(c), when finding that Mr Cathcart had passed the character test.

36    In MZAPC 390 ALR 590 at 597–598 [32]–[33], Kiefel CJ, Gageler, Keane and Gleeson JJ held that decision-making is a function of the real world, and ultimate decisions must lie within the bounds of reasonableness. They said (at 599–600 [38]–[39] and see also at 605 [60]).

[38] The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings [Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350; 120 ALR 16 at 26, referring to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639–40, 642–3; 92 ALR 545 at 546, 548 (Malec)], the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached [Malec at CLR at 639–40, 642–3; ALR 546, 548. See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575; 144 ALR 567 at 579; 48 ALD 481 at 492], whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

[39] Bearing the overall onus of proving jurisdictional error [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; 119 ALD 1; [2011] HCA 1 at [67], [91]–[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206; [2015] HCA 50 at [24]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091; 373 ALR 196; [2019] HCA 34 at [38]], the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(emphasis added)

37    Ordinarily, a merely technical denial of procedural fairness will not be sufficient to warrant the grant of relief (see MZAPC 390 ALR at 602 [46]). The issue is whether the applicant for constitutional writ relief has satisfied the court that the result, in fact, at which the decision-maker arrived could realistically have been different had the procedural irregularity not occurred (at 603 [51]). The Court’s discretion to refuse to grant or withhold relief, (although this may be another aspect of the elaboration of the principle of materiality in MZAPC 390 ALR 590), can be exercised where no useful result would ensue from doing so, as explained by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28]–[29]. The question is whether the Tribunal’s error in construing s 501(7)(c) was sufficiently material so as to attract grant of constitutional writ relief. The Tribunal found, having seen and heard Mr Cathcart, that he had ceased to have any involvement in criminal activities and posed a very low risk of recidivism. It also found that his criminal record, albeit a stain on his character, was one that was barely visible at the time of the hearing.

38    It is impossible to think that in the real world, the Tribunal reasonably could have concluded that Mr Cathcart was a person from whom the Australian community should be protected, given its findings of his very low risk of reoffending and rehabilitation. There is nothing in the Tribunal’s reasoning to suggest that it would, or could, have come to any different view as to the expectations of the Australian community under cl 8.4 of Direction 90. That is because it had no character concerns about Mr Cathcart, given its finding that his past offending “is not such as to call his character into question at this time, given the period that has elapsed and the lack of any evidence of subsequent wrongdoing” (emphasis added).

39    In my opinion, there is no realistic possibility that in the present case, the Tribunal would have found that Mr Cathcart did not pass the character test had it not made its error in construing s 501(7)(c).

40    That then raises a question of principle. Here, the Minister was rightly concerned to challenge the Tribunal’s construction of s 501(7)(c). The Minister wanted the Court to find that on the proper construction of s 501(7)(c), the Tribunal had acted erroneously. If the Minister were simply to be in the position where his application was dismissed, there would be an unsatisfactory outcome. That is because the Tribunal made an error of statutory construction that has consequences beyond this particular case.

41    The Court can grant an applicant declaratory relief to resolve a controversy between the parties, notwithstanding that it also concludes that the application for constitutional relief should be dismissed. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 359–360 [101]–[103], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ dismissed the plaintiff’s claims for writs of certiorari and mandamus. But, their Honours granted a declaration that the processes undertaken to arrive at a reviewer’s recommendation had been flawed in the way that the Court had identified. They said (at 359 [102]).

The power to grant declaratory relief is a power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise” ([Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437; Ainsworth v Criminal Justice Commission (1992)175 CLR 564 at 581-582]). As pointed out in Ainsworth v Criminal Justice Commission [(1992) 175 CLR 564 at 582 (see also Pape v Commissioner of Taxation of the Commonwealth of Australia (2009) 238 CLR 1 at 68 [152]], it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.

42    I am of opinion that the Court should dismiss the application with costs, but declare that on its proper construction, s 501(7)(c) applies to a sentence to a term of imprisonment, whether imposed by an Australian or a foreign court.

43    The Minister did not seek an order for costs against Ms Darnia-Wilson on the basis that she had not urged or promoted the erroneous construction at which the Tribunal arrived. The Court is grateful to Mr Hochroth of counsel who appeared pro bono for the assistance he provided.

44    I also agree with Bromwich J’s additional reasons.

Associate:

Dated:    3 March 2022

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

bromwich j:

45    I agree with Rares J in substance for the reasons that his Honour has given, that:

(a)    the Tribunal erred in finding that s 501(7)(c) of the Migration Act 1958 (Cth) did not apply to sentences of imprisonment of 12 months or more imposed by courts outside Australia;

(b)    a declaration should be made that s 501(7)(c) does apply to such sentences;

(c)    the error was not material in light of the firm factual findings made by the Tribunal in Mr Cathcart’s favour plainly traversing the subject matter of the considerations erroneously not expressly assessed, and applying the assessment of materiality authorised by the High Court in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [37]-[38]; and

(d)    the originating application should be dismissed with costs.

46    I wish to add to his Honour’s reasons to a small degree. In Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019), the learned author gave a pithy summary of assumptions or presumptions guiding statutory interpretation, and in particular said (at 208 [5.2]):

The courts approach the interpretation of legislation with a number of basic assumptions or presumptions in mind. These terms are used interchangeably in this chapter and seemingly are taken by the courts to have the same meaning. The assumptions referred to are sometimes designated ‘rules’, but this is misleading. They do not have the overriding character of protections included in constitutional Bills of Rights. They are but assumptions and give way in the face of an indication in the legislation that it is to operate contrary to them. These assumptions are based on the expectation that certain tenets of our legal system will be followed by the legislature. They are grounded in the liberal values shared by lawyers and legislators with members of the broader community. These values are based on the abstract concepts of freedom and the sanctity of private property that people living in parliamentary democracies under the rule of law expect to be recognised and upheld.

For example, under this approach it is not expected that parliaments will pass legislation that applies to people in other countries — hence a presumption is adopted by the courts that legislation will not have extraterritorial effect …

47    The Migration Act is an example of an expectation and reality that is contrary to any presumption against extraterritorial effect applying. The Migration Act clearly applies to people in other countries, as is made explicit by the objects in s 4(1) and (2). That is a central purpose of the legislation.

48    For similar reasons, the statutory presumption in s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) is readily rebutted. The parallel provision in s 12 of the Interpretation Act 1987 (NSW) was considered at some length in DRJ v Commissioner of Victims Rights (No. 2) [2020] NSWCA 242; 103 NSWLR 692. In particular, Leeming JA, with whom Bell P agreed with additional comments, and with whom Meagher JA agreed, observed at [157]:

A variety of language has been used, including “central conception”, “central focus”, “statutory springboard” and “hinge”, to which may be added the “central concern” mentioned by Mitchell and Beech JJA in Huntingdale Village Pty Ltd (recs and mgrs apptd) v Corrs Chambers Westgarth (2018) 128 ACSR 168; [2018] WASCA 90 at [167]. The different language describes the same approach. Putting to one side the different considerations applicable to legislation creating an offence, in cases where no express provision has been made connecting the statute to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.

49    Leeming JA’s reasoning above, which squarely applies to the subject matter and scope of the Migration Act, and the improbable consequences that would be likely to arise in ordinary cases involving overseas convictions and sentences of the kind identified by Rares J at [30], amply supports the conclusion that there is no fetter imposed by any statutory or common law presumption against extraterritorial operation.

50    I agree with Rares J that, applying the approach authorised by the High Court in MZAPC, it is simply not realistic to conclude that the Tribunal, in light of its clear reasoning and firm conclusions about Mr Cathcart, could have reached a different ultimate finding as to eligibility for the grant of a visitor visa had the correct view been formed as to the operation of s 501(7)(c), and that therefore consideration had been given to the two relevant primary considerations of protection of the Australian community and the expectations of the Australian community in Direction 90.

Associate:

Dated:    3 March 2022

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

GOODMAN J:

51    I agree with the orders proposed by Rares J for the reasons given by his Honour. I also agree with the additional reasons given by Bromwich J.

Associate:

Dated:    3 March 2022