Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the Court’s Costs Practice Note (gpn-costs).

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

REASONS FOR JUDGMENT

MORTIMER J:

1    I have had the opportunity to read the reasons of Snaden J in draft, and I am grateful to his Honour for setting out all the necessary background. I agree with the orders proposed by his Honour. I agree generally with his Honour’s reasoning on ground 1. In relation to grounds 2 and 4, while I do not disagree with his Honour, I prefer to express my own brief reasons for rejecting those two grounds of appeal.

Ground 2: the temporal connection argument

2    This grounds turns on the correct construction of a part of the “character test” definition in s 501(6) of the Migration Act 1958 (Cth):

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

…

(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; …

3    Focusing on the words “in the event the person were allowed to enter or to remain in Australia”, the appellant submits:

the character power is not a “power at large” to determine whether a person’s character is acceptable for entry or stay in Australia in some generalised sense. Where a visa has a time limit, the statute contemplates that either, the person will depart Australia before the expiry of that time limit, or, that officers will detain and remove that person. Thus, the statute contemplates that a time limited visa is exactly that – a time limit on a person’s stay. In applying the character test to the question whether a person should hold a time limited visa, the character test does not authorise consideration of the matter beyond that time limit.

4    In this case, the appellant had applied for a Skilled (Provisional) (Class VC) (subclass 485) visa, as a secondary applicant, with his wife being the primary applicant. This was a temporary visa, and the Minister did not cavil with the proposition that it would have had an expiration date.

5    It was also not in dispute that unless a visa applicant satisfies the repository of the power (be it the delegate at first instance or the Administrative Appeals Tribunal on review) that they pass the character test, the discretion in s 501(1) to refuse or cancel a visa is enlivened.

6    Thus the legislative scheme imposes in effect an onus on the visa holder or visa applicant to satisfy the repository of the power in s 501(1) that they pass the character test. Here it was agreed the applicable part of the character test was subs (6)(d)(i). In other words, it was not in dispute that unless the appellant could satisfy the repository of the s 501(1) power that his circumstances were outside subs (6)(d)(i), then the precondition to the refusal and cancellation power in s 501(1) arising was met.

7    The appellant’s contention goes to what the visa holder or visa applicant must satisfy the repository about – is it (relevantly on the present appeal) only whether they would engage in criminal conduct in Australia during the time they hold the visa under consideration? Or is it wider, and can the repository of the power look to a person’s likely future conduct in Australia over a longer period of time?

8    There is a logical attraction to the appellant’s contentions. The character test is employed as a legislative filter mechanism to enliven a broad discretion to refuse or cancel visas. A visa is permission, granted to a person by the Minister or their delegate, to “travel to and enter Australia” or to “remain in Australia”, or both: see s 29(1) of the Migration Act. By s 29(2) the permission granted by a visa may be to:

(a) travel to and enter Australia during a prescribed or specified period; and

(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.

9    In other words, not only through the prescription about the kinds of visas (see s 30), but also through the statutory description of what a visa is (in s 29), the legislative scheme contemplates and operates on the basis that a grant of permission may be limited to specific periods of time.

10    Subsection (6)(d) identifies conduct the Parliament has selected as prima facie disqualifying conduct for the purposes of (relevantly) s 501(1). A visa applicant or visa holder must persuade the repository of the s 501(1) power they will not engage in that kind of conduct. The text plainly contemplates conduct engaged in after a person has entered Australia. I did not understand the appellant to suggest otherwise. Subsection (6)(d) is directed at conduct a person might engage in once they are present in the Australian community.

11    Operating as a precondition to the wide discretionary power to refuse or cancel a visa, I see little difficulty in construing the chapeau to subs (6)(d) (“in the event the person were allowed to enter or to remain in Australia”) as directed primarily to what a person may do while present in Australia on the visa that is under consideration.

12    It is clear in my opinion that this is the period of time to which the subsection is primarily directed. The purpose of the character test is to provide a filter through which visa applicants, or visa holders, must pass where cancellation or refusal of a particular visa (which they hold or for which they have applied) is under consideration. These provisions are tied to an application for a visa, or to the holding of a visa. In some circumstances, such as absorbed person visas, those visas may be of unlimited duration and be permanent in nature. In other circumstances, a particular visa to enter and then remain may well be expressed to be in force for a specific period of time. Whichever is the visa under consideration, I see little difficulty in construing subs (6)(d) as requiring the visa applicant or visa holder to satisfy the repository about how they will behave during the applicable visa period.

13    Therefore, to some extent, the premises of the appellant’s arguments on ground 2 can be accepted.

14    However, the ground fails for two reasons. First, one aspect of the overall legislative scheme is that it allows for people to move from one visa to another. Depending on the circumstances, it may allow an individual to do so while at all times remaining in Australia. This feature of the overall legislative scheme tends against the appellant’s contentions. I do not consider subs (6)(d) should be construed as prohibiting the repository of the power from considering how a person might behave after the visa in question has expired, provided there is also consideration of how the person might behave during the currency of the visa, that being as I have explained the focus of the provisions. There is nothing in the text or context of s 501(6)(d) to suggest a repository is precluded or prohibited from considering a person’s conduct over a period of time longer than the visa period.

15    Second, the consideration by this Tribunal of what the appellant might do beyond the period of the temporary visa in question was responsive to matters put to the Tribunal by the appellant.

16    The appellant identified what the Tribunal said at [117] as being the passage affected by error:

Although the Applicant and Ms AM have lived in Australia on a series of temporary visas for about six years, they intend to remain in Australia permanently. This includes plans to have children, start a business with S1, and build a home. This is not a situation where the Applicant intends staying for a short time before returning to India. The Tribunal does not accept that the risk assessment in this matter must therefore be solely confined to the period of the temporary visa applied for.

(Footnotes omitted.)

17    Here the Tribunal has looked beyond the visa period because of the evidence given by the appellant and his wife. That is in the context of the appellant’s wife being the primary visa applicant. It is clear from the Tribunal’s reasons as a whole that its principal focus was on the visa period, but by this passage, it was allowing for the possibility, on the appellant’s own evidence and submissions as put to the Tribunal, that he and his wife would make Australia their home, staying permanently. The Tribunal was required to consider this evidence and submission, and respond to it. In doing so the Tribunal found at [119]:

The Tribunal does not consider it inconceivable the Applicant may again find himself subjected to the sort of pressures that he and those closest to him say contextualise his offending. The potential for repeat offending is low but nevertheless real, particularly given the unexplained nature of his sexual crime against a stranger. The harm resulting from sexual assault can be grave, even though the chance of reoccurrence is low.

18    In responding to the way the appellant put his case on review to the Tribunal, which incorporated the appellant’s plans for the future beyond the life of any temporary visa, the Tribunal was quite properly addressing the merits of the appellant’s claim as put to it, including how the appellant invited the Tribunal to consider the risk he posed for the purposes of s 501(6)(d)(i). This reasoning did not cause the Tribunal’s statutory task to miscarry; to the contrary, the Tribunal was addressing matters expressly raised by the visa applicant which were intended to persuade the Tribunal about why the risk of reoffending was low.

19    No error is disclosed by the approach taken by the Tribunal and ground 2 should be rejected.

Ground 4: Direction 90

20    As Snaden J points out at [69] of his Honour’s reasons, this ground concerns whether, in making a finding that the appellant’s offending was “very serious”, the Tribunal misunderstood and misapplied para 8.1 of Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which is set out at [70]-[71] of his Honour’s reasons. The misunderstanding is said to have occurred in the context of the sentence imposed by the Magistrates’ Court on the appellant for his offending, which was a fine of $2,500.00, with no conviction recorded against him. In substance the appellant contends it was not open to the Tribunal to characterise the appellant’s offending as “very serious” in the face of para 8.1, properly construed. As Snaden J also observes, this was not advanced as a legal unreasonableness ground in terms, but rather as a misconstruction of the Direction.

21    This aspect of the appellant’s case went to the exercise of the discretion in s 501(1), rather than to the satisfaction of the Tribunal whether the appellant had shown he passed the character test.

22    It is necessary to say something about the operation and effect of Ministerial directions such as Direction 90, before addressing Ground 4.

The status and operation of s 499 directions

23    Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions. The principles in Drake (No 2) about policies remain generally applicable to these kinds of directions: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 645.

Consideration of ground 4

24    Jagroop was cited by the Tribunal at [31], and I find the Tribunal was aware of its function in relation to the Direction when it exercised the power under s 501(1) on review.

25    In the introductory section of its reasons, the Tribunal did not expressly extract para 8.1 of Direction 90, but referred to para 8 generally at [27]. At [109], the Tribunal stated:

Under the Direction, any finding of guilt relating to sexual offending is viewed very seriously. The Tribunal notes that a person found guilty of Sexual assault under s 40 of the Crimes Act 1958 (Vic) is liable for up to 10 years’ imprisonment. The Court’s punishment on this occasion, however, is clearly at the low end of available sanctions.

(Footnotes omitted.)

26    The footnote to this paragraph referred to para 8.1.1(a)(i). To this view of the appellant’s conduct, the Tribunal added at [110] its view about the appellant’s “other conduct” (see para 8.1.1(1)); namely that it involved apportioning blame to his victim and providing false and misleading information to the Department. These were the Tribunal’s findings of fact on the whole of the material before it, after having heard the appellant give evidence and be cross-examined, and they were not impugned before the primary judge, nor on appeal, other than in the way arising in ground 4.

27    It was then the “totality” of the appellant’s conduct that the Tribunal found, at [111], to be very serious.

28    The context in which an administrative decision-maker such as the Tribunal assesses and determines the “seriousness” of a person’s offending is as part of the consideration of the protective function to be served by refusing or cancelling a person’s visa. The High Court has made it clear that consideration of the protection of the Australian community from non-citizens who may engage in serious criminal behaviour is a legitimate aspect of the exercise of the discretion whether to cancel or refuse a visa: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [52] (Kiefel CJ, Bell, Keane and Edelman JJ), [89] (Gageler and Gordon JJ). Although Falzon concerned s 501(3A), for present purposes the characterisation of the purpose of the power is materially the same, given the precondition concerning the character test, and the content of s 501(6).

29    At [89] of Falzon, Gageler and Gordon JJ also emphasised that punishment forms no part of the purpose for the exercise of these visa refusal and cancellation powers. That proposition bears repeating, especially because in reading Tribunal decisions, it can sometimes seem as if Tribunal members consider they have a role in imposing adverse consequences on visa holders or visa applicants in a way akin to punishment.

30    Ministerial delegates and Tribunal members exercising these powers are not sentencing judges. They are not considering refusal or cancellation of a visa as a way of punishing a person further for their criminal conduct, even if the administrative decision-maker might themselves consider the person received too “light” a sentence. Administrative decision-makers must assiduously avoid approaching their task in this way. Especially with a wide discretion such as that in s 501(1), assessments of the “seriousness” of a person’s offending are undertaken as part of the assessment of the risk of reoffending. The assessments are also undertaken to determine whether the kind of offending in a particular case, in the circumstances in which it occurred, falls within executive policy guidance such as under Direction 90, so that it might be said, as Gageler and Gordon JJ said in Falzon (although in respect of s 501(3A)) that a person’s overall circumstances are such that they are a person who should not be permitted to remain in Australia. It is in these contexts that the Tribunal may assess the “seriousness” of a person’s past conduct, including their offending.

31    The Tribunal’s description of the totality of the appellant’s conduct as “very serious” was not affected by any misunderstanding of para 8.1.1(a) of the Direction, or any error of law. It was an evaluative judgment for the Tribunal to make, in accordance with the guidance given to it by Direction 90. The Tribunal’s assessment was not limited to the appellant’s offending, but extended to his subsequent insight into, and views about, his own offending. The purpose of the guidance in this part of the Direction is to assist the Tribunal to evaluate, consistently with executive policy, how a person’s conduct factors into the overall question of whether they should be able to remain in Australia. Although some of the Tribunal’s language troubled me somewhat, I consider the Tribunal applied the guidance given by Direction 90 in a lawful way.

32    Finally, although this ground proceeded, at least implicitly, on the premise that the sentence imposed on the appellant was at the “low end” (to use the Tribunal’s phrase at [109]), in terms of a tariff in the Magistrates’ Court the appellant’s sentence might not, objectively, have been at the “low end”. There was no evidence before the Tribunal which could inform where the sentence imposed on the appellant sat in terms of outcome for the kind of offending for which he was convicted. I make this observation just to point out the dangers in a Tribunal assuming too much about the sentencing process in the absence of evidence.

Conclusion

33    I agree with Snaden J that the appeal must be dismissed. The primary judge was correct to reject the appellant’s grounds of review. I agree the usual orders as to costs should follow.

Associate:

Dated:    24 March 2023

REASONS FOR JUDGMENT

SNADEN J:

34    The appellant is Indian. He came to Australia in 2015 to study and has lived here ever since. When he first arrived, he was the holder of a student visa that was issued to him under the Migration Act 1958 (Cth) (the “Act”). That visa (or a successor to it) was cancelled on 6 December 2018, after he pleaded guilty to a charge of sexual assault. For reasons that needn’t be rehearsed here, that cancellation was set aside on 8 March 2019.

35    On 18 March 2019, the appellant applied under the Act as a secondary applicant (the primary applicant being his wife) for a Skilled (Provisional) (Class VC, subclass 485) visa (the “Visa Application”). On 30 September 2021, a delegate of the first respondent (the “Minister”) refused the appellant’s Visa Application on character grounds under s 501(1) of the Act. That refusal (the “Delegate’s Decision”) was the subject of an application to the second respondent (the “Tribunal”) for review (the “Review Application”). On 3 January 2022, the Tribunal affirmed the Delegate’s Decision.

36    That decision (the “Tribunal’s Decision”) was then the subject of an application by the appellant for judicial review. By orders dated 8 September 2022, that application (the “Judicial Review Application”) was dismissed and the appellant was ordered to pay the Minister’s costs: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046 (hereafter, the “Primary Judgment”; Anderson J).

37    By a notice of appeal dated 3 October 2022, the appellant appeals from the whole of the Primary Judgment. For the reasons that follow, the appeal should be dismissed. The appellant should pay the Minister’s costs.

Background facts

38    The facts germane to the appeal were recorded in the Primary Judgment as follows:

The [appellant] is a 31-year-old citizen of India whose parents, relatives (save for his brother) and friends still live in India. The [appellant] completed an undergraduate degree in India and first arrived in Australia to undertake postgraduate study in November 2015. Apart from a month-long return visit to India in 2017, he has lived in Australia continuously for six years.

The [appellant’s] wife who will be referred to as “Ms AM”, arrived in Australia in March 2016 to undertake post-graduate study. The [appellant] met Ms AM at university, and they married in April 2017. Ms AM completed a postgraduate degree in 2019 followed by a professional year program in 2020. Ms AM commenced part time work in October 2021. Ms AM is presently on a Bridging Visa awaiting the outcome of a Temporary Graduate Visa application. Ms AM shares a home with the [appellant], her sister, and the [appellant’s] brother.

The [appellant’s] brother will be referred to as “Mr SG”. Mr SG arrived in Australia in 2019 and completed vocational studies as a house painter. Mr SG currently works as a driver and holds a Temporary Graduate Visa.

The [appellant] has one other sibling, a sister who was in Australia on a student visa before returning to India in late 2020.

The [appellant] claims to have a cousin from India that is currently residing in Australia, who he described during the hearing before the Tribunal as a “distant relative”.

A chronology of the [appellant’s] visa history and offending in Australia is as follows:

(a)    8 November 2015: [Appellant] arrived in Australia as the holder of a Student - Higher Education (subclass 573) visa (Student Visa) but withdrew from his university studies after a year. The [appellant] was subsequently included as a secondary visa holder (as his wife’s dependent) and was granted a Student Visa - Higher Education (class TU subclass 500) (Further Student Visa).

(b)    16 August 2017: While working as a taxi driver, the [appellant] was involved in an incident with a passenger in the early hours of the morning. This resulted in him being arrested, charged, and found guilty of sexual assault.

(c)    1 September 2017 to 30 November 2017: [Appellant] committed three traffic offences.

(d)    6 December 2018: Minister cancelled the [appellant’s] Further Student Visa. This decision was set aside in March 2019.

(e)    March 2019: Ms AM applied for a Temporary Graduate Visa, which included the [appellant].

(f)    2 June 2020 – April 2021: Minister advised the [appellant] consideration was being given to refuse his visa application on character grounds and invited him to respond. [Appellant] provided responses through his representative.

(g)    11 October 2021: Visa application was refused under s 501(6)(d)(i) of the Act.

(h)    15 October 2021: [Appellant] applied to the Tribunal to review the visa refusal decision.

On 3 January 2022, The Tribunal affirmed the Delegate’s decision. The Tribunal provided reasons for its decision on 4 January 2022 (Reasons).

39    That factual summary was not controversial and may be adopted for present purposes.

Statutory framework

40    Section 501 of the Act relevantly provides as follows:

501 Refusal or cancellation of visa on character grounds

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.

…

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

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

…

41    Section 499(1) of the Act empowers the Minister to give written directions to those who are charged with making certain decisions under the Act. For present purposes, that power has been exercised in the form of what is known as “Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (hereafter, “Direction 90”).

42    The jurisdiction of the Tribunal to hear an application for review of the Delegate’s Decision is not presently in question. Likewise, there is no controversy concerning the jurisdiction of the primary judge to hear the Judicial Review Application or the jurisdiction of the court now to hear the present appeal.

The Tribunal’s Decision

43    The Tribunal published reasons in support of its decision, which traversed a number of matters, not all of which it is necessary to trace here. At the outset, the Tribunal recognised that its task involved the determination of two central issues: did the appellant fail the character test for which s 501(6) of the Act provides; and, if he did, did the circumstances that attended his Visa Application warrant a conclusion that it should be refused?

44    Before turning to consider matters relevant to those assessments, the Tribunal set out a brief chronology of events (which the primary judge faithfully recited in his reasons for judgment—see above, [38]). It then proceeded to take account of various matters that the appellant had advanced in the hope that his Visa Application would be granted, as well as various matters of which Direction 90 required that account be taken.

45    Specifically, the Tribunal considered the circumstances that led to the appellant’s pleading guilty in 2018 to having committed sexual assault. It was noted that the offence took place when the appellant was engaged as a taxi driver. The victim was one of his passengers. It is not necessary here to particularise the appellant’s conduct; it suffices to note that the Tribunal did so in its reasons.

46    The Tribunal also made reference to a statutory declaration that the appellant signed in June 2020. It was noted that, by that instrument, the appellant had “…blamed the victim and demonstrated a lack of remorse”. That was said to be consistent with what the appellant had later told a psychologist, Mr Cummins, who recalled that the appellant had claimed that he had been “‘blackmailed’ because of the ‘sexual banter’” and that his victim had been “sexually provocative”.

47    The Tribunal noted the appellant’s acceptance of the fact that the years following his offending had “…been characterised by persistent uncertainty about his visa status”. Also noted was the concession made by the appellant’s representative that his offending “…falls into the very serious category”. Of particular significance, the Tribunal observed (references omitted, formatting original):

Under [Direction 90], any finding of guilt relating to sexual offending is viewed very seriously. The Tribunal notes that a person found guilty of Sexual assault under s 40 of the Crimes Act 1958 (Vic) is liable for up to 10 years’ imprisonment. The Court’s punishment on this occasion, however, is clearly at the low end of available sanctions.

The [appellant’s] ‘other conduct’ encompasses past attempts to apportion blame on his victim. This includes during a 2017 police interview and in a Statutory Declaration dated 17 June 2020. He continued to advance the withdrawn consent narrative during a consultation with Mr Cummins in November 2021, and when cavilling about consent at the present hearing. The Tribunal is satisfied the [appellant] has provided false or misleading information to the Department about his offending.

The Tribunal finds the totality of the [appellant’s] offending and other conduct is very serious.

48    Under the heading, “Risk to the Australian community…”, the Tribunal recorded a submission advanced on behalf of the appellant, namely that “…the visa refusal decision relates to ‘a temporary visa and therefore any assessment of risk posed by the [appellant] must be confined to the limited period of the visa applied for’”. In answer to that submission, the Tribunal noted that the appellant and his wife had indicated that they intend to remain in Australia permanently. It did not accept that “…the risk assessment in this matter must therefore be solely confined to the period of the temporary visa applied for”.

49    The Tribunal also considered that the appellant’s offending had not been repeated during the time that he had spent in the community after pleading guilty in September 2018. The following observations were made on that score:

The Tribunal acknowledges the [appellant] was permitted to remain in the community as a secondary holder on Ms AM’s Bridging Visa after his offending. Much of the time since, however, has been contextualised by continuing scrutiny into his visa status. The Tribunal does not accept that the grant of a Bridging Visa persuasively correlates with the [appellant’s] recidivism risk, because unlike the present matter, no formal risk assessment is conducted for Bridging Visas. Moreover, there is no evidence why a Bridging Visa was granted instead of the [appellant] being taken into immigration detention. It is not possible to infer, as the Tribunal is invited to do, that it arose from the [r]espondent concluding the [appellant] is ‘not a risk to the Australian community’. That is plainly evident from the [r]espondent’s submissions and contentions in the present matter.

…

The Tribunal accepts the [appellant] has spent four years in the community since his court appearance, during which he has remained law-abiding. This must be seen, however, in the context of the visa review processes enlivened by his offending. He has been on notice following his offending that his ability to remain in Australia is under continuing review. This is a contextually different situation to a non-citizen who has not committed a criminal offence and whose visa status is not under continuing review.

50    The Tribunal went on to conclude that the appellant’s risk of reoffending, though low, was nonetheless real; and that, when coupled with the very serious nature of the charge to which he had pleaded guilty, that weighed “…moderately against granting the visa”. Ultimately, the Tribunal was satisfied that the appellant did not pass the character test and that its discretion to refuse his Visa Application under s 501(1) of the Act (or to affirm the Delegate’s Decision to that effect) should be exercised.

The Present Appeal

51    Before the learned primary judge, the appellant advanced four bases upon which he contended that the Tribunal’s Decision should be set aside as a product of jurisdictional error, namely:

1.    The Tribunal failed lawfully to consider the applicant’s argument about having been “tested in the community”, in that the Tribunal wrongly thought that at all material times during his “testing in the community” the [appellant] had an outstanding question about his visa status whereas for a substantial portion of the period there was no such question.

2.    The Tribunal wrongly failed to confine its attention of any risk of harm posed by the applicant to the term of the visa sought, as required by s 501(1) of the Migration Act 1958 (Cth).

3.    The Tribunal failed to draw the only available rational inference from the grant of the bridging visa, being that the Minister through a delegate at an earlier time had been satisfied that the [appellant] would not engage in criminal conduct during the term of that bridging visa.

4.    The Tribunal misconstrued or misapplied cl 8.1.1(1)(a)(i) of Direction No 90.

52    The primary judge rejected all four contentions and, by his notice of appeal, the appellant charges his Honour with having erred, in each respect, by doing so. By written submissions advanced in the appeal, the third of those four bases was abandoned.

53    His Honour took the view that the jurisdictional errors about which the appellant complained were, in fact, not established. If any of those conclusions was wrong, it will necessarily follow that his Honour erred and that the appeal should succeed. If they were not wrong, the appeal should fail. The appeal thus turns upon whether or not the Tribunal committed the errors of jurisdiction that the appellant attributes to it.

54    That understood, consideration of the primary judge’s reasons may be confined. It is convenient to address each of the three species of error about which the appellant complains.

Ground 1: consideration of submission about having been tested

55    The appellant’s first ground of appeal presupposes that the Tribunal failed to consider what he had advanced about the fact that, since his offending occurred (and since he pleaded guilty to it), he had lived without further incident in the community. It is suggested (as it was before the learned primary judge) that the Tribunal proceeded upon the premise that the appellant had, for the entirety of the period following his offending, “…been on notice…that his ability to remain in Australia [was] under continuing review”.

56    That, the appellant maintains, was factually incorrect. It was not until several months after he pleaded guilty to sexual assault that his (then) visa was cancelled. That cancellation was set aside in March of 2019. The Visa Application was made shortly thereafter and it was not until 2 June 2020 that the appellant was issued with a notice of intention to consider its refusal on character grounds. There were, the appellant maintains, periods following his offending during which he was not “…on notice…that his ability to remain in Australia [was] under continuing review”. Insofar as its reasoning proceeded upon a contrary premise, the appellant maintains that the Tribunal failed to consider important evidence or a submission of substance, by reason of which its decision was beyond what it had jurisdiction to make.

57    Further, the appellant contends that the Tribunal’s reasoning discloses no consideration of the fact that, throughout the period between March 2019 (when the cancellation of his previous visa was set aside) and June 2020 (when he received the notice of intention to consider refusal of his Visa Application), he lived at large in the community without any reoffending. That is said to have been a matter to which the Tribunal ought to have turned its attention; and its failure to do so is said to reflect jurisdictional error because its reasons disclose no consideration of an important aspect of the submission that he had advanced.

58    The appellant’s submission must be rejected. There can be no credible suggestion that the Tribunal laboured under any misapprehension as to the chronology of relevant events. They were recited accurately in its decision (above, [44]). From its observation that “[m]uch of the time since [the appellant’s offending and guilty plea] has been contextualised by continuing scrutiny into his visa status”, the Tribunal must be taken to have been aware that there were some times during that period over which no “continuing scrutiny” was at play. The later use of the phrase “continuing review” must be construed under the light of that observation. Read fairly, the Tribunal’s reasons cannot properly be understood wrongly to suggest that the appellant’s visa status was the subject of singular, constant review in the period following his offending or guilty plea. More accurately—and as the Minister submits—the Tribunal must be taken to have understood that it was the subject of recurring assessments, which were live for much of that period.

59    The Tribunal’s observations reflect the nature of the submission that the appellant advanced. In support of his Visa Application, the appellant highlighted that he had lived incident-free in the community since September 2018 (when he pleaded guilty to the charge of sexual assault). He made no reference to any period (including the period spanning March 2019 to June 2020) in which his status as a visa holder was or was not under consideration.

60    The Tribunal’s failure expressly to refer to any such period, then, is of no moment. It was not obliged to express findings about—nor otherwise to expose in its written reasons some consideration of—a submission that was not advanced.

61    In any event, the suggestion that the appellant’s ability to remain in Australia was not “under continuing review” between March 2019 (when the Visa Application was made) and June 2020 (when he received notice that consideration was being given to its refusal) seems somewhat generous. It is to be recalled that the appellant’s previous visa was cancelled in consequence of his offending. That cancellation was set aside only days before the present Visa Application was made. The appellant’s ability to remain in Australia otherwise than as the holder of a bridging visa hinged, at least to some (if not a very significant) degree upon the success of that application. The appellant must surely have appreciated that any reoffending that transpired during the period over which his Visa Application was under consideration would likely not assist it. The Tribunal’s observation that he was “…on notice following his offending that his ability to remain in Australia [was] under continuing review” seems consistent with that obvious truth.

62    Regardless, the Tribunal did not fail to understand, consider or engage with the appellant’s contention. The learned primary judge reached the same conclusion and, with respect, correctly so. The first ground of appeal should fail.

Ground 2: temporal connection to period of visa

63    The appellant next submits that the Tribunal’s Decision was a product of jurisdictional error insofar as the Tribunal, when assessing the risk that the appellant might pose if allowed to remain in Australia, failed to confine that assessment to the period over which the visa for which he had applied would remain valid if granted.

64    The learned primary judge addressed the contention as follows (Primary Judgment, [37]-[44]):

The [appellant’s] construction of s 501(6)(d)(i) seeks to read words of a temporal limitation, that the person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia. The [appellant] concedes as much in his submissions…[he submits] that the words “allowed to “remain in Australia” is implicitly confined by the term of the visa”. The Tribunal…was correct to reject reading in words of temporal limitation to s 501(6)(d)(i) of the Act. No such implication arises from the plain terms of the section. There is no reason to read in the words that the [appellant] seeks to imply.

The circumstances in which a court may read words into a statute are limited. It may be done to correct simple, grammatical, drafting errors that would defeat the object of the provision, but it may not be done in order to fill gaps in legislation: Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 per French CJ, Crennan and Bell JJ at [37]-[38].

It has been observed that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Company [1910] AC 409 per Lord Mersey at 420; JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 per Flick J at [51] and Maritime Union of Australia v Fair Work Commission (2015) FCR 15 per North, Flick and Bromberg JJ at [24].

The Court must prefer the interpretation of a statutory provision that would best achieve the purpose or object of the statute: s 15AA of the Acts Interpretation Act 1901 (Cth). Significance must be given to the ordinary or grammatical meaning of a legislative provision in the sense that there must be a reasoned basis to depart from that ordinary meaning which is both afforded and confined by a consideration of context: SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ at [14] and Gageler J [38].

I accept the Minister’s submission that the temporal limitation that the [appellant] seeks to imply is so specific, and at such a large degree of variance from the words in fact used, that it cannot be concluded that the words were inadvertently overlooked in the drafting of the provision. Nor are the words necessary to achieve the apparent purpose of the Act.

Section 501(6) of the Act forms part of a statutory scheme within the Act which advances the object of regulating the presence in Australia of non-citizens, in the national interest, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: ss 4(1) and 4(4) of the Act.

The majority of the High Court in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 (Falzon), comprising Kiefel CJ, Bell, Keane and Edelman JJ accepted that the purpose of s 501 of the Act is to protect the Australian community. In Falzon at [89], Gageler and Gordon JJ also observed that, “the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia”: see also Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89 per Farrell, Rangiah and Anderson JJ at [56]. I accept the Minister’s submission that the context and purpose of the Act, and s 501 in particular, do not limit the refusal power to consideration of risk of criminal offending in Australia “during the period of the visa”. The context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time.

The Tribunal was correct…to reject the [appellant’s] argument that the risk assessment must be solely confined to the period of the temporary visa. It follows that Ground 2 must be rejected.

65    I detect no error in that reasoning; indeed, I agree with it.

66    Section 501(6) holds that a person does not pass the character test if (amongst other possibilities) there is a risk that he or she will engage in criminal conduct in the event that he or she were allowed to enter or remain in Australia. Here, of course, the appellant was already in Australia at the point that his Visa Application was denied. At issue, then, was whether there was an attendant risk of criminal conduct in the event that he remained.

67    Section 501(6)(d) does not specify a point or points in time in respect of which a risk of criminal conduct should or might be assessed. It speaks only of what might occur “in the event” that a person were allowed to “enter or…remain in Australia” in consequence of the granting or non-cancellation of a visa. Entry into Australia is, by nature, instantaneous. It is nonsensical to assess the risk of offending upon entry in any limited temporal sense. Such an assessment turns, instead and very simply, upon what might happen after (which is to say, in the event that) entry occurs. There is nothing about the relevant statutory context that requires a different approach in respect of a person who “remain[s] in Australia”. The assessment of the hypothetical—that is, what might happen in the future—is simply not limited, implicitly or otherwise, in the way for which the appellant contends.

68    The learned primary judge did not err by rejecting the appellant’s contention. The second ground of appeal must fail.

Ground 4: misconstruction of Direction 90

69    By his fourth ground of appeal, the appellant contends that the Tribunal erred by concluding that his offending was “very serious”. It is said that, in reaching that conclusion, the Tribunal misunderstood and misapplied paragraph 8.1 of Direction 90.

70    As has been identified, Direction 90 concerns (amongst other things) the making of decisions under s 501 of the Act. Paragraph 6 of Direction 90 confers upon the Tribunal (amongst others) an obligation to “…take into account the considerations identified in sections 8 and 9, where relevant…” Paragraph 8 identifies some “primary considerations” to which attention must be given. One of them is the “protection of the Australian community from criminal or other serious conduct”. Paragraph 8.1 of Direction 90 identifies additional matters of which the Tribunal must take account when considering the protection of the Australian community. Paragraph 8.1(2) reads as follows:

(2)    Decision-makers should also give consideration to:

(a)    the nature and seriousness of the non-citizen's conduct to date; and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

71    Paragraph 8.1.1(1) of Direction 90 identifies some matters of which the Tribunal was, for present purposes, obliged to take account when considering the nature and seriousness of the appellant’s criminal offending. Relevantly, it provides as follows:

8.1.1 The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

(a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i)    violent and/or sexual crimes;

…

f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

…

72    The appellant’s submission is straightforward enough. He notes that, upon his plea of guilty to sexual assault in September 2018, he was ordered to pay a fine of $2,500.00, with no conviction recorded against him. That, he says, ought to have inclined the Tribunal to conclude that his offending was objectively at the lowest end of the spectrum of seriousness; or, at any event, not “very serious”. His written submission summarised the contention as follows:

[I]t is submitted that the Tribunal did not correctly understand and apply the Direction, in that the Tribunal treated the task at cl 8.1(2)(a) as though it was to be determined by an application of cl 8.1.1(1). Even if that is not established, at least, the Tribunal did not correctly apply cl 8.1(2)(a).

Additionally, or perhaps alternatively, it might be said that whilst the appellant’s offending engaged the “very serious” designation in the normative standard set by cl 8.1.1(1), the weight to be given thereto was an open question in this review, to be answered (at least in part) by the seriousness (viewed on a scale constructed for this purpose) of the particular offending and other conduct.

The Tribunal erred in not approaching its task in this way.

73    In assessing the seriousness of the appellant’s criminal offending, the Tribunal was obliged to take into account the effect of paragraph 8.1.1(1)(a) of Direction 90: namely, that the Australian Government and the Australian community consider sexual crimes to be very serious. Doing so did not relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2) of Direction 90: the Tribunal remained separately obliged to consider for itself the seriousness of the appellant's offending and to bring that assessment—informed by the statement of executive policy for which paragraph 8.1.1(1)(a) stands—to bear upon its decision making. At issue presently is whether it did so; or whether, as the appellant submits, it simply “…treated the task at cl 8.1(2)(a) as though it was to be determined by an application of cl 8.1.1(1)”.

74    The appellant’s contention is not pitched at the level of legal unreasonableness. Nonetheless, he maintains that the Tribunal should be understood to have misconstrued paragraph 8.1 in the way that he alleges because, objectively, there is no other way that it might have formed the view that his offending was “very serious”. That conclusion, he says, was not open in light of the nature of his offending and the sanctions that his guilty plea attracted.

75    Contrary to what the appellant submits, the Tribunal’s conclusion that the appellant’s offending was “very serious” was not a mere or automatic restatement of what is recorded in s 8.1.1(1) of Direction 90. It is to be recalled that the Tribunal reasoned as follows (references omitted):

The [appellant’s] ‘other conduct’ encompasses past attempts to apportion blame on his victim. This includes during a 2017 police interview and in a Statutory Declaration dated 17 June 2020. He continued to advance the withdrawn consent narrative during a consultation with Mr Cummins in November 2021, and when cavilling about consent at the present hearing. The Tribunal is satisfied the [appellant] has provided false or misleading information to the Department about his offending.

76    A footnote attached to the reference to the appellant’s “other conduct” referred broadly to paragraph 8.1.1 of Direction 90. The sentence noting that the appellant had “…provided false or misleading information...about his offending” concluded with a footnote that referred to paragraph 8.1.1(1)(f) of Direction 90. Immediately thereafter, the Tribunal recorded its conclusion that “…the totality of the [appellant]’s offending and other conduct is very serious.”

77    It is clear that the Tribunal’s assessment of the seriousness of the appellant’s offending traversed beyond the fact recorded in paragraph 8.1.1(1)(a): namely, that the Australian Government and community regard sexual crimes as very serious. En route to its conclusion, the Tribunal took account of other matters, including some of which it was required to take account by paragraph 8.1.1(1) of Direction 90.

78    Moreover, it was open to the Tribunal to assess the appellant’s offending as “very serious” notwithstanding that it attracted a sanction at the low end of what sexual assault might otherwise attract. The sanction meted out to the appellant was one of many considerations by which an assessment of the seriousness of his offending was properly open to be made. Others included the appellant’s “past attempts to apportion blame on his victim” and the fact that he “provided false or misleading information…about his offending” (above, [47]), both of which spoke to the appellant’s remorse for and insight into his conduct.

79    The Tribunal’s assessment of the seriousness of the appellant’s offending was made consistently with the requirements of paragraph 8.1 of Direction 90. The misconstruction or misapplication of which he complains did not occur and the learned primary judge did not err by concluding as much. The appellant’s fourth ground of appeal must fail.

Conclusion

80    None of the appellant’s grounds of appeal has been made good. The appeal should be dismissed with costs.

Associate:

Dated:    24 March 2023

REASONS FOR JUDGMENT

RAPER J:

81    I have had the advantage of reading the reasons of Mortimer and Snaden JJ in draft. I agree with the orders Snaden J proposes and his reasons for ground 1. As regards grounds 2 and 4, I concur with the reasons of Mortimer J.

Associate:

Dated:    24 March 2023